The Full Federal Court of Australia recently dismissed an appeal brought by the Australian Olympic Committee against a first instance decision of Wigney J that Telstra's 2016 "Go to Rio" advertising campaign did not contravene the Olympic Insignia Protection Act 1987 or the Australian Consumer Law: Australian Olympic Committee Inc v Telstra Corporation Ltd  FCAFC 165. We summarised the first instance decision in our August 2016 Telecommunications, Media and Technology Law Update.
Background to the dispute between the Australian Olympic Committee and Telstra
In the lead up to the Rio Olympics, Telstra promoted the availability of live-streamed Olympics coverage through Channel Seven's "Olympics on 7" app. The Australian Olympic Committee (AOC) commenced proceedings alleging Telstra's advertisements used "protected Olympic expressions" in contravention of the Olympic Insignia Protection Act 1987 (Olympic Insignia Act) and amounted to misleading and deceptive conduct in contravention of the Australian Consumer Law (ACL).
Under the Olympic Insignia Act, a person requires a licence to use a "protected Olympic expression", such as "Olympic", "Olympics" and "Olympic Games" for commercial purposes. The Act outlines two situations in which a person "uses" a protected expression for commercial purposes for the purposes of the Act, including where:
- the person causes a protected expression to be applied to services as part of an advertisement in Australia; and
- the application would suggest to a reasonable person that the person is a sponsor of the Olympics or of a relevant Olympic body.
Although Telstra was not licensed to use a protected Olympic expression in connection with the Rio Olympics, it was the "Technology Partner" of Channel Seven's official broadcast. Channel Seven's broadcast rights included the right to broadcast its Olympics coverage via its "Olympics on 7" smartphone app. Telstra customers were able to access premium features through the app for free, whereas non-Telstra customers had to pay for those features.
Telstra's Rio Olympics advertisements
One advertisement in issue was Telstra's "Go to Rio" TV advertisement. The Full Court said it was the "high point" of the AOC's case on appeal. Three different versions were aired. The advertisement promoted the use of Telstra's network to watch Olympics coverage on Telstra customers' mobile devices. Each version featured Peter Allen's song "I go to Rio", visual images of families watching the Olympics together, and the clarifying statement "Official Technology Partner of Seven's Olympic Games Coverage". The second and third versions included a disclaimer stating "Telstra is not an official sponsor of the Olympic Games, any Olympic Committees or teams".
At first instance, Wigney J found the advertisement did not refer to any Olympic body or any sponsorship arrangement with one, did not feature the Olympic emblem, flag or symbol, and did not include images of the Australian Olympic team or team members. Although the protected expressions "Olympics" and "Olympic Games" were used, they were only used in the phrases "Olympics on 7 app", "Olympics on 7" and "Seven's Olympic Games coverage".
Telstra's other advertisements included:
- promotions for a data plan on a Samsung mobile phone;
- a video advertisement displayed on third party websites;
- advertisements in two Telstra retail catalogues;
- the landing websites used to authenticate Telstra customers for access to premium features through the "Olympics on 7" app;
- retail point of sales material at Telstra stores; and
- other digital materials appearing on third party websites or emailed to Telstra customers.
The Australian Olympic Committee lost at first instance
At first instance, Wigney J noted there were similarities between the AOC's claims under the Olympic Insignia Act and the ACL. In relation to the former, the question was concerned with the impression conveyed by the use of the protected expressions, whereas in the case of the latter, the question was more concerned with the overall impression conveyed by the advertisements and Telstra's campaign as a whole.
Wigney J considered that Telstra's advertisements suggested Telstra customers could access Channel Seven's Olympics coverage on their mobile devices under an arrangement between Channel Seven and Telstra, and that, contrary to the AOC's claim, the advertisements did not suggest that Telstra had some form of sponsorship arrangement with the Rio Olympics or an Olympic body.
His Honour considered that for the AOC to succeed on its ACL claim, it needed to establish Telstra's advertisements conveyed a representation or had a tendency to lead the audience to assume that Telstra had some form of endorsement, approval, sponsorship, affiliation, or licensing arrangement with the Rio Olympics or a relevant Olympic body. His Honour held that was not the case. It was not enough to establish that Telstra's advertisements had merely been "Olympic themed".
As his Honour disagreed that any of Telstra's individual advertisements conveyed the alleged representations, his Honour held the "Go to Rio" campaign as a whole did not do so either.
The Australian Olympic Committee's appeal was unsuccessful
On appeal, in relation to its claims under both the Olympic Insignia Act and the ACL, the AOC argued Wigney J had erred by not finding that Telstra's advertisements "evoke[d] a connection with a relevant Olympic body".
In relation to the TV advertisement, the AOC submitted that the "dominant story" of the advertisement was Telstra's involvement in the Rio Olympics, and the combined effect of the language, images and music used in the advertisement, including images of ordinary people barracking for Australia, suggested a sponsorship or sponsorship-like arrangement between Telstra and a relevant Olympic body.
In relation to the Olympic Insignia Act, the Full Federal Court held that in assessing whether the prohibition had been contravened:
- attention should be directed to the advertisement in which the expression appears as a whole;
- the relevant test is objective and must be applied in light of relevant considerations, including, in the case of Telstra's TV advertisement, that the audience cannot be expected to have paid close attention to the advertisement;
- there must be a causal connection between the application of the protected expression and the reaction of the reasonable person to the application;
- a "mere suggestion" of a relevant sponsorship arrangement is not sufficient; it must be "more likely than not to be brought to mind";
- it is legitimate to consider evidence of consumers who have seen the advertisements, but caution should be taken in assessing such evidence; and
- the intention of the advertiser is relevant, but this should not be overstated; it is "simply one piece of evidence to be assessed".
In addressing the AOC's arguments on appeal, the Full Court said the AOC's appeal was not a new trial and the Court's role was not to undertake "a fine parsing exercise" or an "overzealous analysis" of Wigney J's judgment. The AOC had to establish Wigney J had fallen into error.
The Full Court was critical of the AOC's grounds of appeal, stating that many were simply assertions that Wigney J had decided differently to the AOC's case at trial. The Full Court held there will be no relevant error merely because a different trial judge may have attributed different weight to factors considered by Wigney J and thereby reached a different outcome to his Honour.
Telstra's advertisements suggested only that it sponsored Seven's broadcast
In addressing the AOC's criticisms of the approach taken by Wigney J in his judgment, including the factors which his Honour took into account and the weight he gave to each one, the Full Court found as follows in relation to the TV advertisement.
- Wigney J's reasoning contained no relevant error. His Honour had properly considered the TV advertisement as a whole and in sufficient detail, including its "overall broad theme or story", its "dominant or general thrust" and what it "conveyed in a general sense" to viewers.
- His Honour took into account the images and protected expressions used by Telstra and certain evidence about Telstra's intention in employing the expressions (although his Honour pointed out that the question of contravention of both the Olympic Insignia Act and ACL was an objective one).
- Wigney J concluded "the broad message is that events at the Rio Olympics can be watched live on mobile phones or tables using the Telstra network". The TV advertisement made it sufficiently clear that Telstra's sponsorship arrangement was with Channel Seven. It did not "cross the line" by suggesting that Telstra was a sponsor of the Rio Olympics or an Olympic body. This was made clear by the statement "Official Technology Partner of Seven's Olympic Games Coverage" and the disclaimer in the second and third versions of the advertisement. The weight properly given to the clarifying words and disclaimers in the advertisement was a matter for Wigney J.
- In relation to certain evidence which the AOC relied on about the response of a "focus group" member about the advertisements, the Full Court found that Wigney J had properly given the evidence little weight. The sample size of interviewees was small, it was unclear what questions and information had been provided, what assumptions the interviewees had been asked to make, what advertisements they were shown, the order in which they had been shown, or when the interviewees provided their answers.
- The AOC also submitted that Wigney J had posed the "central question" in the case too narrowly and had not properly considered whether Telstra had made a representation that it sponsored or provided sponsorship-like support to the Olympic Games and Olympic movement generally, as opposed to considering only whether such a suggestion had been made in relation to bodies or teams associated with the Rio Olympics itself. The Full Court rejected these arguments as well because the AOC's submissions relied one paragraph of Wigney J's judgement, whereas other sections of his Honour's decision showed that he had considered the relevant broader questions which he required to consider.
- The AOC also made arguments about the limited and qualified nature of the disclaimer, because it only referred to Telstra not being an "official" sponsor, not that Telstra was not also an "unofficial" sponsor. Given that Justice Wigney found, and the Full Court upheld, that the advertisements did not convey a prohibited suggestion or misrepresentation, the disclaimer was unnecessary and its effect was therefore irrelevant. The weight Wigney J gave to the disclaimer did not reflect any error.
The AOC failed to demonstrate any error in the trial judge's reasoning and its appeal was therefore dismissed.
Observations and lessons from the case
The AOC has released a statement about the decision, stating that it "will continue to prioritise protection of the investment our sponsors make and to take action against those seeking to capitalise on the Olympic movement without authority".
This decision serves as a reminder of the legal risks associated with engaging in advertising and marketing activities connected with or relating to the Olympics, Olympic bodies and/or the Olympic movement.