London Olympic Games and Paralympic Games Bill
Lord Davies of Oldham (Deputy Chief Whip (House of Lords), HM Household; Labour)
My Lords, this is certainly a serious issue and I will need to stick fairly closely to the brief to meet the requirements of the debate which has been presented with such precision by the four noble Lords who have contributed to it. I make it clear that we are not talking about television or radio regulated media. As we all recognise, broadcasts are regulated by a regulatory body. We are not in any way, shape or form anxious about broadcasts. We are worried about printed material but we are not worried about newspapers. As noble Lords have emphasised, it is clear who has paid for a certain section of a newspaper. The noble Lord, Lord Borrie, emphasised that.
We are concerned about flyers that look like news stories or newspapers but whose purpose is to link a product with the games and which purport to give news or information but are actually involved in a close association between the news which is supposedly being given and the product which is being advertised or sold. That is the area with which we are trying to deal. I say to the noble Lord, Lord Brooke, and others who expressed great concern about the general freedom of the press—certainly, as the noble Lord, Lord Glentoran, suggested, the press is a major organ of communication in our society—that we do not have the slightest intention of inhibiting press freedom. We would not want to do it because this Government are as concerned about press freedom as anyone else in the country. As the noble Lord, Lord Glentoran, emphasised, we are concerned to ensure that the Olympic Games get the best possible reception from journalists. However, we have to safeguard certain aspects, phrases and terms associated with the Olympic movement and the Olympic Games from those who seek commercial advantage from them. We discussed this issue at great length in Committee and it was discussed in the other place. I want to put on record my confidence that this Bill will do nothing whatever to prevent legitimate editorial or journalistic practices in relation to the London games. I shall set out for noble Lords how the London Olympics association right relates to editorial and journalistic practices and the specific editorial and journalistic exemption that we have created.
The London Olympics association right, created by Schedule 4, will only be infringed by someone who creates an association between a good or service and the London games—not any other form of comment; not any other form of discussion; not any other news story; but a deliberate attempt to associate a good or service with the games. An association, as defined in the Bill, is an unauthorised commercial, contractual, corporate or financial connection with the games. In considering whether any news report or magazine article would infringe the London Olympics association right, we therefore need to consider whether it would create such a commercial, contractual or other connection between a good or a service and the games. That is a pretty high threshold for any article to cross.
Everything else is, of course, part of the cherished freedoms of comment of the press. If the London Olympics association right is infringed in those terms, we need to deal with that. A current affairs programme reflecting on London's success in winning the right to host the games; an evening news bulletin about the preparations for the games; or a newspaper article reporting on the opening ceremony or 100 metres final in 2012 would not suggest any form of commercial, contractual or corporate connection with the games. We would not expect them to; and they do not.
However, so important is the right of the press to be able to report on all aspects of 2012 and the games, we have created a specific defence—a "backstop" if you will—further to protect all legitimate editorial and journalistic practices from infringing the London Olympics association right, which we need. We have had to be realistic and balanced about this issue. In setting out the exemption, we have had to ensure that we did not inadvertently create something that could be used by those who are intent on exploiting for commercial gain an unauthorised association with the games. Our advice is that the defence that we have created in the Bill strikes the right balance. It gives the rare journalist who in reporting on the games creates a commercial association between goods and services and the games, the opportunity to demonstrate why it was necessary for them to do that, but it will not allow others cynically to exploit the defence for a purpose for which it was not intended.
Amendments Nos. 27 and 28 remove the important qualifying phrase "necessary incident" from that defence. In this short debate, my noble friend Lord Borrie particularly emphasised the issue of "necessary incident". We discussed that concept extensively in Committee as well. Our firm legal advice is that we have got this position right. The reason that the term "necessary incident" is contained in the exemption is to avoid creating a situation whereby someone could commercially exploit the games and rely on hiding behind a journalistic defence. The term "necessary incident" is therefore a means by which to prevent, for example, published "advertorials", the real motive of which is not to communicate information but to commercially exploit the games by promoting a product or a service.
Noble Lords also expressed concerns in Committee about the effect that the Court of Appeal's decision in Panini would have on those defences. The noble Lord, Lord Clement-Jones, referred to that case, and I commented on it in my letter to him. I hope that noble Lords will accept that, to the extent that the case is relevant to the Bill—and here we must be careful to remember that the decision actually concerned provisions of the Copyright Act and therefore does not lay down a definitive or binding interpretation of this Bill—it gives some useful guidance on the way that a court might approach one of the defences set out in the Bill.
Amendment No. 28 ensures that the journalistic exemption extends to all publishing or broadcasting whether about the Olympics or not. In Committee, the noble Lord, Lord Clement-Jones, was concerned about the situation in which an article about east London referred to the Olympics by way of context. I reassure noble Lords that this sort of activity will of course be allowed, and the Bill as drafted already allows for that. Adding the words,
"any editorial usage including without limitation",
to paragraph 8 of schedule 4 is unnecessary, as it would duplicate what we have already provided for in the Bill.
The Bill currently provides an exemption for the incidental inclusion in a literary, dramatic or artistic work of a representation likely to create an association with the London games. Amendment No. 29 extends that exemption to an advertisement of that literary or artistic work. If something is an incidental inclusion in an artistic work, it should be an incidental inclusion only in any accompanying advertising. Were that the case, the current drafting of the Bill would exempt such an advert, as it would be covered by the "incidental inclusion" defence. It would be a strange situation indeed if an incidental reference to the games in a piece of art, for example, became much more prominent when that artistic work was being advertised for sale. Indeed, the amendment would create a rather strange loophole whereby someone could unduly exaggerate a reference to the games when advertising an artistic work that only referenced the games incidentally.
I understand the concerns that noble Lords have raised about the exemptions that should apply to the London Olympics association right. I recognise the sincerity and effectiveness with which those fears have been expressed. This is an important area, and I do not seek to minimise it in any way, shape or form. I listened carefully to what was said in Committee, which prompted my somewhat lengthy letter to the noble Lord, Lord Clement-Jones. I have listened to powerful representations again today. I am clear, however, that the Bill does not have the undesirable effect that noble Lords are suggesting. I hope that I have given assurances that we have thought through this issue with the greatest of care. The issue of freedom of the press is of the greatest significance to this country, in all our work and to a free society.
In addition, the noble Lord, Lord Glentoran, said that those concerned with the Olympic Games might even have a narrower perspective of having the media very much on our side with regard to the games. Trying to present the games in the best possible light and hoping that others reflect that is a laudable objective, and I have not the slightest doubt that we will not succeed in every case. However, we must defend the London Olympics association right and have some element of restriction. We are doing that within the framework of advertisement. When dealing with editorial copy, I assure my noble friend Lord Borrie that we are talking not about comment in newspapers with the intent of effective communication of information but about printed material that purports to look like a newspaper and to convey news but is an advertisement or flyer that associates a good or service with the games. We must defend ourselves against that kind of content.
On that basis, we have carefully defined the legal grounds on which infringement would take place. I hope that noble Lords will recognise that far from being cavalier and not mindful of the real concerns about press freedom, the Government have been concerned to defend certain words and contents from unfair, improper and illegal advertisement, while having a prime commitment to freedom of comment, freedom of the press and freedom of broadcasting. I hope that the noble Lord will think that he can safely withdraw his amendment.