Vic Government to clip the wings of aerial advertisers

By Philippa Hore.

Key Points:
Unauthorised aerial advertisers over Melbourne major events will face criminal liability and fines of over $250,000 under proposed new Victorian anti-ambush laws. The legislation is very specific though, and intending ambushers have been left with plenty of options.

Aerial advertising is a popular ambush marketing method, and its use is growing: in 2006, Melbournians saw aerial advertising over its major events including a Holden airship flying over the MCG during the Toyota-sponsored AFL Grand Final and a Qantas banner dragged by a helicopter across Flemington airspace on Emirates Melbourne Cup Day.

This caused much concern to event organisers and sponsors: major events are often only viable because of sponsorship, and ambush marketing undercuts the sponsorship's value. Until now the Victorian Parliament has tried to curtail aerial advertising through ad hoc laws, such as the specific legislation for last year's Commonwealth Games in Melbourne and the 12th FINA World Swimming Championships, currently taking place in Melbourne.

The Victorian Government has responded with a draft bill to control aerial advertising, which aims to protect the ability of major event organisers to attract and retain major sponsors, and to encourage international rights holders to have confidence in bringing their events to Melbourne.

Control of aerial advertising

The draft legislation establishes an authorisation process for aerial advertising within eyesight of the venues of protected events. Engaging in aerial advertising without appropriate authorisation will be an indictable offence, and there are stiff penalties (see below).

Aerial advertising includes skywriting, banners or other signs attached to or displayed on aircraft, hang gliders, parachutes, paragliders and similar devices and laser or digital projections of advertising. "Aircraft" includes airships, blimps, hot-air balloons, helicopters and ultra-light aircraft.

To be within eyesight of the event venue, the advertising must be within sight of that venue and its content must be able to be seen without the aid of optical apparatus (other than contact lenses or spectacles!).

Applications for authorisations for aerial advertising must be made to the Secretary of the Department for Victorian Communities. Authorisations may be given if the Secretary considers that the advertising would not adversely affect the commercial arrangements or conduct of an event. Authorisations must not be given unless the relevant event organiser has been consulted. The authorisation power may be delegated to a public service executive or a statutory body established for a public purpose (such as the Australian Grand Prix Corporation).

What events are protected?

The draft legislation automatically protects the:

• Boxing Day Test
• Australian Open Tennis Championships
• Australian Formula One Grand Prix
• Australian Motorcycle Grand Prix
• AFL Grand Final
• Caulfield Cup
• Cox Plate and
• the four days of the Melbourne Cup Carnival.

Additional major events may also be protected by order of the Governor in Council, on the recommendation of the Minister. To make a recommendation, the Minister must be satisfied that:

• the event is a major national or international event and
• that its commercial arrangements and operations would be adversely affected by aerial ambush marketing.

The Minister must also consider issues such as the size and likely media coverage of the event and its contribution to Victoria's profile as a host of major events. Event orders must specify the time, date and venue of the event and the event organiser and must be published in the Government Gazette. The draft legislation does not set out the process for applying for an event order, but presumably this will be done by approaching the Minister with material supporting the application.

Exceptions

The draft legislation only prevents aerial advertising of a commercial nature. It will not regulate aerial statements of a non-commercial nature (so the classic sky written marriage proposal can still be made during major events!).

Emergency services aircraft, media aircraft gathering news or current affairs material are also exempted. Aircraft operators such as commercial airlines and charter operators can still display the normal markings and livery identifying the aircraft's operator or manufacturer. Early morning scenic hot air balloons will also effectively be exempt, as their flights have generally landed by 9am, when the restrictions on the day of each major event commence.

Penalties and civil remedies

The maximum penalties for displaying unauthorised aerial advertising are 400 penalty units for an individual (currently amounting to $42,972) and 2400 penalty units for a body corporate (currently amounting to $257,832). According to the Government, these significant amounts are designed to provide a strong level of deterrence, particularly to large corporations.

The draft legislation also provides civil remedies in relation to aerial ambush marketing. The State or an event organiser may seek injunctive relief and any person suffering loss, injury or damage as a result of the unauthorised aerial advertising can take action for damages (including recovery of future losses as a result of the potential loss of sponsorship of an event).

Limitations

The legislation deals only with aerial ambush marketing. It does not deal with other forms of ambush marketing, such as:

• the purchase of significant billboard signage within sight of the venue of the major event; or
• saturation advertising throughout the television broadcast of major events.

The legislation also protects only major events in Victoria during the time periods specified. It will not cover:

• aerial advertising before and after the specified times (eg. before 9 am on Grand Final day and on the morning of the Boxing Day test, when diehard fans are generally making their way to event venues);
• major events held outside Victoria;
• significant preliminary events leading up to a major event (most importantly, AFL finals matches are currently given no protection, despite finals matches being of critical importance to the value of AFL sponsorships).

In these cases, some protection may be provided to sponsors and event organisers by the laws prohibiting misleading and deceptive conduct, but this will depend on the manner in which the ambush marketing is carried out.

Interestingly, as currently drafted, the exemption for media aircraft gathering news or current affairs material appears to provide an opportunity for ambush marketers to thwart the legislation by placing paid advertising on media aircraft. It remains to be seen whether this is addressed before the final version of the legislation is passed.

When will the legislation come into effect?

Debate on the bill will resume when the Victorian House of Representatives reconvenes on 17 April 2007. The draft legislation will come into effect the day after it receives royal assent and the first event expected to be covered is the AFL Grand Final in September 2007.

We will keep you informed of developments.

For further information, please contact Philippa Hore.