Navigation: Previous Page | Contents | Next Page
Major
Sporting Events (Indicia and Images) Protection
Bill 2014
Portfolio: Sport
Introduced: House of Representatives, 26 March 2014
Purpose
1.88 The Major Sporting Events (Indicia
and Images) Protection Bill 2014 (the bill) seeks to prevent the unauthorised
commercial use of certain indicia and images associated with the Asian Football
Confederation Asian Cup 2015, the International Cricket Council Cricket World
Cup 2015 and the Gold Coast 2018 Commonwealth Games, consistent with written
undertakings provided as a condition of being awarded the right to host these
events.
1.89 The bill seeks to achieve this by
establishing a registration process to restrict the use of protected indicia
and images for each event to official users only.
Committee view on
compatibility
Right to freedom of opinion and expression
1.90 The right to freedom of opinion
and expression is guaranteed by article 19 of the International Covenant on
Civil and Political Rights (ICCPR). The right to freedom of opinion is the
right to hold opinions without interference and cannot be subject to any
exception or restriction. The right to freedom of expression extends to the
communication of information or ideas through any medium, including written and
oral communications, the media, public protest, broadcasting, artistic works
and commercial advertising.
1.91 Under article 19(3), freedom of
expression may be subject to limitations that are necessary to protect the
rights or reputations of others, national security, public order (ordre
public),[1]
or public health or morals. Limitations must be prescribed by law, pursue a
legitimate objective, be rationally connected to the achievement of that
objective and a proportionate means of doing so.[2]
Exemptions for the use of certain indicia and images
by third parties
1.92 The statement of compatibility for
the bill notes that it would both engage and limit the right to freedom of
expression through establishing the registration process to restrict the use of
protected event indicia and images to official users only. However, this
limitation is described as necessary to promote the rights of people to access
culture by ensuring that sufficient revenue can be raised to stage the events
in question, including through sponsorship and the commercial use of the indicia
and images.[3]
The statement of compatibility further notes that the bill provides for 'limited
exemptions' for certain third parties from prohibitions against the use of event
indicia and images where the use is for the purpose of the provision of information,
or for criticism or review in certain cases. It concludes:
[These]...limitations
associated with freedom of expression are reasonable, necessary and
proportionate to achieving the objective of promoting the right of individuals
to enjoy and benefit from participating in cultural life through participation
in and access to sport.[4]
1.93 The committee accepts that the limitation
on freedom of expression is proposed in pursuit of the legitimate objective of promoting
or protecting the rights of others (being the right of people to participate in
the events in question and the protection of the intellectual property of the
event sponsors), and that the proposed restrictions are rationally connected to
that objective in seeking to protect the financial interests of event sponsors
and investors, and thereby the financial viability of such events.
1.94 In relation to the proportionality
of the proposed restriction, the committee notes that the proposed restriction
on unauthorised commercial use of protected event indicia and images appears
generally to be proportionate to its stated objective, particularly insofar as
exemptions are provided for the purposes of criticism, review or the provision
of information.[5]
This would appear to cover news reporting and critical or satirical review of
the events, sponsorship arrangements and artistic or other aspects of protected
indicia and images, including where such activities are undertaken for
commercial purposes. For example, a show commenting on or satirising the events
using protected images, logos and words could be broadcast by a commercial
television or radio network with no formal relationship with the event sponsors
or organisers.
1.95 However, the committee notes that
the bill as drafted does not provide an explicit or 'plain' exemption for the
use of protected event indicia and images when used for the primary purpose of
criticism, review or the provision of information. Instead, it provides that
expressions for the primary purpose of such uses will be 'not alone sufficient
to suggest the existence of a sponsorship arrangement' for the purposes of
proposed paragraph 12(1)(c). This paragraph provides that a protected indicia
or image is used for commercial purposes if that use would suggest, to a
reasonable person, that the user is or was a sponsor of, or is or was the
provider of other support for the event or a related event.
1.96 It is unclear to the committee
what the scope of the exemption would be as drafted in this way and whether for
example, it would adequately protect news reporting and critical or satirical
review of the events, sponsorship arrangements and artistic or other aspects of
protected indicia and images (as discussed above). Accordingly, it is unclear whether
the measure may be regarded as proportionate in the extent to which it
preserves the right to use protected indicia or images for the purposes of
criticism, review or the provision of information.
1.97 The committee therefore
seeks the Minister for Sport's advice as to the proportionality of the proposed
restriction on the right to freedom of expression, particularly in relation to
as the exemptions provided for the purposes of criticism, review or the
provision of information (in the terms drafted in the bill).
Power to order corrective advertisement
1.98 Proposed section 47 of the bill
provides that a court may make an order requiring a person to publish at their
own expense a corrective advertisement, if the court is satisfied that the
person has used a protected indicia or image without authorisation. A corrective
advertisement order must specify the means and times of the corrective
advertisement (proposed subsection 47(3)).
1.99 The committee notes that the
proposed power to order a person to publish an advertisement would involve a
limitation on that person’s right to freedom of expression, which includes the
right not to be compelled to engage in particular forms of expression. However,
the statement of compatibility for the bill provides no assessment of the
compatibility of this measure with the right in the context of the bill.
1.100 The committee's usual expectation
where a right may be limited is that the statement of compatibility set out the
legitimate objective being pursued, the rational connection between the measure
and that objective, and the proportionality of the measure.
1.101 The committee therefore
requests the Minister for Sport's advice as to the compatibility of proposed
section 47 with the right to freedom of expression.
Navigation: Previous Page | Contents | Next Page