Purpose and structure of the Bill

The main purposes of the Major Sporting Events (Indicia and Images) Protection and Other Legislation Amendment Bill 2021 (the Bill) are to amend the Major Sporting Events (Indicia and Images) Protection Act 2014 (the Act) to:

• provide protection against ambush marketing by association[1] for two major sporting events and certain specified authorising bodies, event bodies, indicia and images associated with those major sporting events:
  • the International Cricket Council (ICC) Men’s T20 World Cup 2022
  • Fédération Internationale de Football Association (FIFA) Women’s World Cup Australia New Zealand 2023 and
• provide that the definition of event body can be expanded by additional event bodies being prescribed in delegated legislation.

Schedule 1 to the Bill also repeals two existing Schedules. Schedule 1 of the Act is repealed because the Men’s T20 World Cup was delayed. Schedule 3 of the Act is repealed because it related to the Gold Coast 2018 Commonwealth Games and has ceased to have effect.

Schedule 2 to the Bill makes a minor, unrelated technical amendment to the Sport Integrity Australia Act 2020 (SIA Act) to correct an erroneous reference to an article of the World Anti‑Doping Code in the SIA Act’s definition of ineligibility.

Background

Protection of the significant financial investment of sponsors in major events is crucial to the capacity of sporting bodies to hold major sporting events.[2] The Act was passed in 2014 to protect major sporting event sponsorship from ambush marketing. Ambush marketing is not a technical term and the term is not used in the Bill. It is a marketing strategy:

… used by third parties to a major event in an attempt to associate themselves directly or indirectly with the event and reap the rewards without official authorization or sponsorship rights.[3]

The Act ensures:

Generally speaking, a person cannot use a major sporting event’s protected indicia or images for commercial purposes during the event’s protection period, unless the person is an official user for the event …

There are a number of remedies available to official users for a major sporting event, such as injunctions, damages or an account of profits, and corrective advertisements. Some official users need consent before seeking these remedies.[4]

The protected major sporting events are identified in Schedules to the Act.[5]

Understanding ambush marketing

Karry Jackson, a marketing manager at online brand management company, Brandit, identified five types of ambush marketing:

• Ambush by association—a non-sponsor brand associates its brand with a country, team or player that is present at a competition and almost passes itself off as an official sponsor of the competition.

For example, in the 2014 World Cup in Brazil, ‘Beats by Dre’ ran a number of advertising campaigns that referred to ‘The Game Before The Game’, showing prominent World Cup players wearing the headphones whilst conducting their pre-game rituals. Despite no official connection to the World Cup, this positioned ‘Beats by Dre’ at the heart of the event and saw the brand experience a massive growth in headphone sales and receive over 26 million views on YouTube for its adverts![6]

• Ambush by intrusion—involves a brand gaining exposure at the event itself. The brand might be present on site through pop up stalls, handing freebies to spectators or placing large signs at the venue or in the surrounding areas.

At the 2010 World Cup, Bavaria Beer provided 36 tickets for the Holland v Denmark match to a group of women in matching orange branded outfits. The cameras broadcasted the group during the game on a number of occasions for the world to see.[7]

• Opportunistic advertising—involves brands indirectly referring to the competition, often through tongue-in-cheek advertising.

For example, during the London 2012 Olympic Games, Paddy Power posted an advert stating that it was the “official sponsor of the largest athletics event in London this year! There you go, we said it (Ahem, London France that is)”. Paddy Power actually sponsored an egg and spoon race held in London, France, so despite IOCs efforts to remove the advert, it remained.[8]

• Digital ambush marketing is use of social media to run wider campaigns and respond quickly to events at competitions. Brands find subtle ways to associate themselves with other brands, events, athletes, teams and competitions et cetera, and mitigate the risk of infringing their intellectual property rights.

During the 2012 Olympics in London, where Adidas was the official shoe sponsor, Nike launched their “Find Your Greatness” social campaign, which featured ordinary people training and competing in other London-based locations, such as Little London in Jamaica or East London in South Africa. A video was published on YouTube’s homepage that was supported by a website, physical advertisements, and the hashtag #findgreatness. The campaign was enormously successful, to the point that many consumers assumed Nike had sponsored London 2012, without them contributing a cent towards sponsorship![9]

• Keyword ambushing involves competing brands acquiring keywords related to the sponsors, event organisers et cetera, so they can drive search traffic to their own sites. Trademarking keywords may assist to stop the activity.[10]

Current law on ambush marketing

The current state of Australian law with respect to ambush marketing is summarised in Sports Law 2021:[11]

In Australia, there is no specific law dealing with ambush marketing, however, event organisers can rely on other legal avenues for dealing with ambush marketing, including those relating to infringement of intellectual property rights, the misleading and deceptive conduct provisions of the Australian Consumer Law as set out in the Competition and Consumer Act 2010 (Cth) and the common law tort of passing off.

Australia also has specific legislation in relation to ambush marketing at certain sporting events, including the Major Sporting Events (Indicia and Images) Protection Act 2014, which prohibits any marketing or advertisements that would suggest to a reasonable person that the company is a supporter or sponsor of certain major sporting events covered by the Act.[12] [hyperlinks added]

Committee consideration

The Selection of Bills Committee recommended that the Bill not be referred to committees.[13]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) reported on the Bill in Scrutiny Digest 9 of 21.[14] The Scrutiny Committee was concerned that the Bill proposes use of delegated legislation to expand the scope of a central definition:

Item 1 of Schedule 1 seeks to amend the definition of 'event body' in the Major Sporting Events (Indicia and Images) Protection Act 2014 (the Act) to provide that additional event bodies may be prescribed in the rules. Currently, event bodies must be listed in the Schedules to the Act for the relevant major event…

The committee's consistent scrutiny view is that significant matters, such as the scope of definitions or concepts central to the operation of a scheme established by an Act, should be included in primary legislation unless a sound justification is provided for the use of delegated legislation…

It is unclear to the committee why it is appropriate to allow the minister to prescribe additional event bodies in the rules in circumstances where there is no guidance on the face of the primary legislation as to the types of bodies that may be prescribed.[15]

The Scrutiny Committee thought there would be sufficient time for additional event bodies to be listed by amendment to the primary legislation.[16]

The Scrutiny Committee requested more detailed advice from the Minister as to:

• why it is considered necessary and appropriate to allow the definition of 'event bodies' to be amended to allow additional event bodies to be prescribed in the rules; and
• whether the bill could be amended to include at least high-level guidance on the face of the primary legislation as to the circumstances in which it would be appropriate to prescribe additional event bodies in the rules.[17]

The Minister advised that to support the delivery of the FIFA Women's World Cup 2023, FIFA had established a wholly owned entity in Australia and New Zealand that had not yet been established at the time the bill was introduced. The Minister considered it was prudent to retain the option to prescribe additional event bodies through the rules to accommodate any unforeseen new bodies FIFA may wish to add.[18]

The Scrutiny Committee reiterated its view that, given the nature of the relevant events and the amount of planning generally undertaken, there would be time for any additional event bodies to be included by amendments to the primary legislation.

As the bill is currently before the Parliament, the bill could be amended to include the new FIFA entity as an event body. The committee does not consider that the minister's response has adequately justified the appropriateness of allowing the rules to prescribe additional event bodies. The committee notes the minister's response does not address whether the bill could be amended to provide at least high-level guidance as to the circumstances in which additional bodies could be added by the rules.[19]

The Scrutiny Committee considered that the Minister's response did not adequately address its scrutiny concerns and requested the minister's further advice as to whether the bill could be amended to:

• prescribe the new FIFA entity (FWWC2023 Pty Ltd) as an event body for the FIFA Women's World Cup Australia New Zealand 2023 and
• include at least high-level guidance on the face of the primary legislation as to the circumstances in which it would be appropriate to prescribe additional event bodies in the rules.[20]

Policy position of non-government parties/independents

No issues raised by non-government parties/independents could be identified at the time of publication.

Position of major interest groups

No issues raised by major interest groups could be identified at the time of publication.

Financial implications

The Government does not expect the Bill to have any financial impact on Commonwealth expenditure or revenue.[21]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[22]

The statement of compatibility acknowledges that the Bill engages the following human rights:

• the right to enjoy and benefit from culture in article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
• the right to freedom of expression in article 19(2) of the International Covenant on Civil and Political Rights (ICCPR)
• the right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR and
• fair trial and fair hearing rights in Article 14(1) of the ICCPR.[23]

However, it concludes:

The Bill is compatible with human rights because it advances the protection of human rights through promoting the right of individuals to enjoy and benefit from participating in cultural life, and to the extent that it also limits human rights, those limitations are reasonable, necessary and proportionate.[24]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (PJCHR) made no comment in relation to the Bill. The PJCHR makes no comment when a Bill does not engage, or only marginally engages, human rights; promotes human rights; and/or permissibly limits human rights.[25]

Key issues and provisions

Definition of ‘event body’

The definition of event body in section 9 of the Act is:

event body, for a major sporting event, means a body specified as an event body in the Schedule to this Act that covers the event.

Item 1 of Schedule 1 proposes expansion of the definition to:

event body, for a major sporting event, means a body specified as an event body in, or a body prescribed by rules made for the purposes of, the Schedule to this Act that covers the event.

The expansion of the definition is quite limited. The proposed definition will confine any additional event body prescribed by the rules to a body associated with those events listed in the Schedules of the Act.  

Protection of indicia and images for specified major sporting events

Item 2 of Schedule 1 to the Bill repeals existing Schedule 1 to the Act covering a postponed ICC T20 World Cup 2020 event and substitutes proposed Schedule 1—ICC Men’s T20 World Cup 2022.

Item 3 repeals Schedule 3 to the Act covering an historical event (there is no existing Schedule 2) and introduces proposed Schedule 2—Fédération Internationale de Football Association (FIFA) Women’s World Cup Australia New Zealand 2023.

Each of those proposed schedules identifies, for each of the events:

• the authorising body
• the event bodies
• the protected indicia and
• the period for which the protection applies.

Subsection 16(2) of the Act permits an event body to use any of the event’s protected indicia and images that relate to that event body for commercial purposes during the protected period.

For each specified major sporting event, the proposed Schedules also specify that the protected indicia and images relate to each event body, unless the rules otherwise prescribe.[26]

Erroneous reference in the SIA Act

The definition of ineligibility in section 4 of the SIA Act is:

ineligibility means an athlete or other person being barred on account of an anti‑doping rule violation for a specified period of time from participating in any competition or other activity or funding as provided in Article 10.12.1 of the World Anti‑Doping Code.

The World Anti-Doping Code 2021[27] no longer contains an Article 10.12.1. The reference was correct prior to renumbering and other amendments to the World Anti-Doping Code which came into effect on 1 January 2021. Article 10.12 now deals with the financial consequences of anti‑doping rule violations.

Item 1 of Schedule 2 substitutes a reference to Article 10.14 which deals with ‘Status during ineligibility or Provisional Suspension’. Article 10.14.1 prohibits participation in defined competitions and activities while an athlete or other person has been declared ineligible or is subject to a provisional suspension. Article 10.14.2 prescribes when an athlete may return to training and use certain sporting facilities. Article 10.14.3 deals with additional periods of ineligibility due to a violation of the prohibition against participation. Article 10.14.4 deals with the withholding of financial support during a period of ineligibility.

Consequences of error from 1 January 2021 until correction

The erroneously defined term appears only in Part 2A of the SIA Act which deals with the Violations List. The Violations List is established and managed under section 19A. That section requires that when a person is sanctioned, certain information, including any the period of ineligibility, must be recorded on the Violations List. The Violations List is a public record of the sanction, but does not itself cause any additional specific consequence.[28]

The sanction on an athlete or other person for an anti-doping violation is actually imposed by a sporting administration body or a sporting tribunal under the Sport Integrity Australia Regulations 2020 (SIA Regulations).[29] Since the sanction itself is imposed under the rules of the relevant sporting body, no sanctions appear to be affected by the error.

Subsection 19A(7) allows the National Anti-Doping Scheme (the NAD Scheme)[30] to make provision for correction of the Violations List. Section 4.24 of the NAD Scheme requires the Chief Executive Officer of Sport Integrity Australia to correct an error in an entry in the Violations List as soon as practicable after becoming aware of it.