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07 May 2009

Victoria takes aim at ambush marketers

by Philippa Hore, Perry Wood

The Victorian Government says this will be the most comprehensive major sporting event-related legislation in the world.

Victoria has long regarded itself as the sporting events capital of Australia. The Victorian Government is aiming to consolidate this position by introducing legislation designed in part to protect major event organisers from ambush marketing.

Background

In the past, the Victorian Parliament has passed ad hoc laws to facilitate the holding of significant sporting events, such as the Commonwealth Games Arrangements Act 2001, the World Swimming Championships Act 2004 and the Australian Grands Prix Act 1994.

Victoria has also introduced legislation prohibiting unauthorised aerial advertising over certain major Melbourne sporting events, such as the AFL Grand Final, the Boxing Day Test, the Australian Formula One Grand Prix, the Caulfield Cup, Cox Plate and the four days of the Melbourne Cup Carnival.

Despite this, issues have continued to arise around major sporting events in Victoria. In response, the Victorian Government has now introduced a bill designed to further curb ambush activity, with the aim of enhancing Victoria's capacity to attract and host major sporting events.

The Major Sporting Events Bill 2009

The bill, which was introduced to the Victorian Parliament on 26 February 2009, attempts to control and protect major sporting events in Victoria by:

  • incorporating existing legislation regulating aerial advertising, ticketing arrangements and crowd management (with some improvements, for example by adding the AFL finals series to the list of events automatically protected from aerial advertising); and
  • introducing a range of new protections for major sporting events for which a major sporting event order has been made.

In his second reading speech for the bill, the Minister for Sport, Recreation and Youth Affairs, James Merlino, said he believed the bill, if passed, would be "the most comprehensive major sporting event-related legislation in the world".

What is a "major sporting event order"?

The new protections contained in the bill will apply to events for which a major sporting event order has been made.

Orders may be made by the Governor in Council, on the recommendation of the Minister. To make such a recommendation, the Minister must be of the opinion that the order is in the public interest and that the event is a major event at an international, national or state level. The Minister must also have regard to certain features of the event before recommending that an order must be made, including its size, the likely number of spectators, the likely media coverage, the projected economic impact, the contribution to Victoria's international profile as a host of major events, the experience and expertise of the event organiser and factors affecting the operational organisation of the event (such as traffic and security management plans).

The order may also specify an event venue and an area of land which will be the event area.

What are the new protections?

The bill allows a range of protections, but they are not automatically part of an order. Importantly, the Minister has stated that not all of the protections available under the bill will be required for each event. Instead, he says "that only the most significant of major sporting events would require the full range of protections provided by the bill". The event order must state which particular protections will apply to an event.

Unauthorised advertising

To supplement the existing provisions relating to aerial advertising, the bill prohibits unauthorised advertising on buildings and structures within a protected event, venue or area. Unauthorised advertising on certain vessels in the vicinity of an event is also prohibited. Event organisers are given authority to remove or obliterate any unauthorised advertising within an event area.

It is also a criminal offence under the bill to possess "prohibited items" in an event area or venue without authorisation. This includes a flag or banner larger than 1 metre by 1 metre (or with a handle longer than one metre) and any items that are in such a quantity that a reasonable person could infer that they are to be used for commercial purposes.

Unauthorised use of event logos

The minister may declare that specified logos, images or references connected to an event are protected, as a result of which it will be an offence to use those things without authorisation. In order to make such a declaration, the minister must be satisfied that:

  • the logo, image or reference relates to and is sufficiently connected to the identity and conduct of the event; and
  • the event's commercial arrangements are likely to be adversely affected by the improper use of these things.

A similar provision was contained in the World Swimming Championships Act 2004.

Suggesting sponsorship, approval or affiliation with an event without authorisation

The bill also makes it an offence to engage in conduct that suggests a sponsorship, approval or affiliation with an event, event organiser or associated activity that does not exist.

Unauthorised broadcasting or recording of an event

The Bill makes it an offence to broadcast, telecast or transmit sound or images of an event (whether this occurs inside or outside an event venue or area) without the authorisation of the event organiser.

However, it will not be an offence to make a broadcast, telecast or transmission:

  • if the purpose is not for profit or gain and the broadcast, telecast or transmission is not of a substantial part of the event;
  • for the purpose of criticism or review, parody or satire, reporting of news, judicial proceedings, the giving or receipt of legal advice or private and domestic use.

This provision has been criticised by some sporting organisations for not going far enough. It has been argued that the prohibition should apply more broadly to all international, national and state sporting events, not just those in relation to which an order has been made.

The bill also makes it an offence to make a sound recording or film, television, video or digital recording of moving images of an event (or any part of an event) for profit or gain if that recording is not authorised, or if it is made inconsistently with the terms of an authorisation.

Timeframe

The bill still needs to be passed by the Victorian Parliament and the timeframe for this is currently unclear. The progress of the bill will no doubt be tracked with great interest by event organisers, sponsors and potential ambushers alike.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.