Those with memories of recent global sporting events will no doubt recall how during the 2010 World Cup, South Africa negotiated with Fifa the establishment of 56 “Fifa World Cup Courts”, which went on to try such despicable felons as the 30 Dutch female fans who by attending the games dressed in Orange were accused of ambushing marketing for “Bavaria beer”. BB, as I’ll call it, was of course not an approved World Cup sponsor. The offending Dutch women had to endure a night in custody and a first attendance at the courts, as well as the threat of a 6-month prison term, before eventually all charges were dropped against.
Could the same happen in London? In one sense, probably not. Faced with the prospect of the same difficulties getting around London as all the rest of us, the criminal Judges have refused to comply. There were be fewer courts open during the Olympics than there are normally; the Crown Courts will be operating at only 50% of capacity, and as for the magistrates’ courts, the Law Gazette reports that “Thames and Stratford magistrates’ courts, both situated on the specific ‘games lane’, will operate one courtroom only (for overnight cases) and planned youth courts will not be held at Stratford. Highbury Corner will deal with priority custody trials and productions from Stratford and Thames, whilst gateway traffic cases will not be listed at Waltham Forest.” Anyone charged with an offence under Olympic laws, in other words, is likely to be spending more than only one night in custody before their case is called on.
Yet, that’s not to say that UK law has been untouched by the Olympic spirit. Two statutes intended to enforce Olympism have troubling consequences, and are likely to be invoked over the next 3 months.
The first is the Olympic Symbols Etc (Protection) Act 1995. The point of OSPA 1995 is to protect the Olympic symbol, motto and certain ‘protected words’ ( ‘Olympiad’, ‘Olympian’, ‘Olympic’) from unregulated use by unofficial enterprises. Section 3 of the 1995 Act creates a criminal offence when a person uses:
(a) A representation of the Olympic symbol, the Olympic motto or a protected word, or
(b) A representation of something so similar to the Olympic symbol or the Olympic motto as to be likely to create in the public mind an association with it or a word so similar to a protected word as to be likely to create in the public mind an association with the Olympic Games or the Olympic movement
I’ll leave hanging in the air where that leaves all of those (eminently healthy and desirable) protest campaigns that have been playing in recent weeks with the Olympic symbol.
The second Act is the London Olympic and Paralympic Games Act 2006. This Act creates the Olympic Delivery Authority (ODA), which is responsible for delivering the physical infrastructure necessary for hosting the Games (section 4), and empowered to buy land, apply for planning permission, enter into contracts, etc. The ODA is also responsible for an Olympic Transport Plan (i.e. the games lanes, section 10). The ODA is in charge of regulating advertising and street trading in the vicinity of Olympic venues and has the power to initiate criminal proceedings against those who breach any regulations it makes to this end (section 19 of the Act).
It is not easy to find the actual Regulations online, although the government did consult on a draft version last year which in essence bans all advertising unapproved by the London organisers on railway stations in the vicinity of the Olympics, on enclosed land in which Olympic events are taking place, on street furniture, planes, etc in the Olympic zone.
The Regulations make protesters exempt (we can at least cheer that). But what would happen if there was a re-run of the 2010 World Cup’s “Orange-gate”?
Regulation 8 provides that the ban on advertising does not apply to a person who engages in advertising activity only by wearing advertising attire, unless the person knows or has reasonable cause to believe that he or she is participating in an ambush marketing campaign. Regulation 3 meanwhile defines ambush marketing broadly (as any campaign to advertise a good, a service, or a person) – widely enough, in other words, to include almost everything,
I certainly don’t wish to prejudice anyone’s trial, but it seems pretty clear to me that if a member of the public was seen to be wearing at an Olympic event clothing that was associated with a company that was not an approved Olympic sponsor, they would (it appear) be committing a criminal offence, and they might well be arrested, and indeed if that person was to admit at interview that they had worn that clothing deliberately, they would have to anticipate a conviction.
In this way, the struggle of companies for market share is becoming another opportunity for states to jail people.
[hat-tip to Ben McCormack]