The Federal Court of Australia has dismissed an application brought by the Australian Olympic Committee (AOC) who claimed that a series of Telstra advertisements falsely or misleadingly suggested that Telstra was a provider of sponsorship or sponsorship-like support for the upcoming Rio Olympic Games.1
The AOC based its case on sections 18 and 29(g) and (h) of the Australian Consumer Law (ACL) (covering misleading and deceptive conduct and false representations as to sponsorship or approval) as well as section 36 of the Olympic Protection Insignia Act (Insignia Act) which prevents the use of certain “protected Olympic expressions” – Olympic, Olympics, Olympic Games, etc. – in commercial circumstances.
The AOC has been vigilant this year, as it has in previous Olympic years, acting to protect its sponsors’ rights by complaining against suspected ambush marketing. It has written to several organisations about their use of “protected Olympic expressions” or other material which suggests an Olympic theme. The Telstra “I Go to Rio” case provides helpful guidance on the objective consideration which must be given to the question of whether any such use – of Olympic themed material – would suggest that the person using the expressions or related themes was a provider of sponsorship or had a similar affiliation with an Olympic body.
The AOC claimed that Telstra’s multimedia campaign promoting its association with Channel Seven’s Official Olympic Games telecast contravened both the ACL and the Insignia Act. Whilst Telstra for many years sponsored the Australian Olympic Team, it is not now a sponsor of the Rio Olympic Games or the Australian Olympic Games – that role is taken by Telstra’s competitor, Optus. Instead, Telstra is presently the official technology partner of Seven’s Olympic Coverage. As a consequence of this role, Telstra’s customers are able to access the premium version of Seven’s “Olympics on 7” app without paying an access fee, so long as they provide authentication details to Telstra via a “landing page” operated and maintained by Telstra on its website.
Telstra’s “I Go to Rio” advertising campaign consisted of television commercials, videos on third party websites, catalogues, point of sale materials, its authentication landing page (facilitating its customers’ free premium access to the Olympics on 7 app) and other digital materials. All of the advertising material employed a sporting theme relating to watching the upcoming Rio Olympic Games. Some of the electronic materials, including the TVCs, featured the well-known Peter Allen song “I Go to Rio”. In early iterations of the campaign, the materials included statements such as:
“This August, for the first time ever, watch every event in Rio live with the Olympics on 7 app and Telstra”
as well as the Telstra logo and the words
“Official Technology Partner of Seven’s Olympic Games Coverage”.
Those statements were subsequently removed and replaced with the words
“This August all Telstra mobile customers will have free premium access to every event live on Seven’s Olympics on 7 app. Enjoy the action on Australian’s fastest mobile network”
together with an onscreen or printed disclaimer which reads
“Telstra is not on official sponsor of the Olympic Games, any Olympic Committees or teams”.
Similar disclaimers were added to other digital advertising launched by Telstra to promote its association with the Olympics on 7 app.2
Olympic Insignia Protection Act
Section 36 of the Insignia Act prohibits any person other than the AOC from using a “protected Olympic expression (which includes Olympic, Olympics and Olympic Games) for “commercial purposes” unless they are licensed to do so.
Use for “Commercial purposes” includes use of the protected Olympic expressions in relation to goods or services for advertising or promotional purposes, in circumstances where the use, to a reasonable person, would suggest that the user is or was a sponsor of, or the provider of, sponsorship-like support for the AOC, IOC or other Olympic related bodies and teams.
The Court determined that such a suggestion would not have been made to the reasonable person who viewed any of the Telstra advertising materials. Noting that this is an objective test, Wigney J found that the first version of the Telstra TVC (prior to the addition of the disclaimer) was “borderline” in the sense that it went close to suggesting that Telstra had a sponsorship arrangement with an Olympic body, not just with Seven’s coverage of the Olympic Games. His Honour went so far as to find that it was fairly clear that “Telstra wished to push the envelope as far as it could” but that, on balance, the first Telstra TVC did not cross that line. With the change of wording and addition of the disclaimer to the TVC, his Honour found the position to be more clearly in Telstra’s favour. His Honour considered that those changes made clearer references to Telstra’s relationship with Seven, including the fact that the Olympic broadcast and the app on which it can be viewed are Seven’s, not Telstra’s. His Honour also found that the disclaimer was capable of reversing or erasing any impression that Telstra was the sponsor or the provider of sponsor-like support for any Olympic body.
The same reasoning applied to the other forms of Telstra’s advertising and the AOC’s claims under the Insignia Act therefore failed.
Australian Consumer Law – misleading and deceptive conduct and false representations
His Honour noted that the AOC’s claim under the ACL required similar consideration to the Insignia Act claim as the relevant question was whether Telstra’s advertising conveyed to its audience that Telstra (or its services) had some form of endorsement, approval, sponsorship, affiliation or licencing arrangement with a relevant Olympic body. His Honour noted that the relevant principles were common sense guides to what is essentially a question of fact, and reiterated that:
- The question of deception is to be tested against the ordinary or reasonable members of the class to whom the representation was made. In the case of the Telstra campaign, that class would be very broad – from the highly educated to the unsophisticated or gullible.
- The question is whether a substantial or at least a reasonably significant number of that class is likely to be misled or deceived.
- It is not necessary to prove that the advertiser intended to mislead or deceive, although evidence of intention may make a finding of contravention more likely.
- To be effective, a disclaimer must communicate information in such a way that the effect of any otherwise misleading conduct or representation is reversed or erased.
- The context in which the ads are published is relevant - the particular Telstra ads considered were unlikely to be critically scrutinised and were likely to be viewed casually and subject to distraction.
Whilst his Honour found that Telstra’s campaign was themed around the Rio Olympic Games, that alone is not enough to contravene the law. In circumstances where Telstra is a sponsor of Seven’s Olympic broadcast, Telstra’s advertising may refer to that fact and, provided it does not misleadingly suggest that Telstra is also a sponsor of an Olympic body, then the advertising will be on the right side of the ACL. Even in the case of Telstra’s original forms of advertising (before the changed wording and the addition of a disclaimer) Wigney J found that the overall impression created was one of an association, involvement or sponsorship with Seven but not with any Olympic body - which therefore involved no contravention of the ACL.
The AOC’s application was therefore dismissed with costs and viewers will hear more Peter Allen in the weeks to come.
Examples of the ad campaign
Before and after versions of the advertisement on Telstra’s authentication landing page included changes to the text under the “Go to Rio” headline, together with the use of the disclaimer.
Click here to view image.