As the torch is lit and we approach the 30th Olympiad in London, the excitement is unmistakeable.  Add to that the fact that this is being dubbed the 'first social Olympics' and we're positively abuzz.

It may be hard to believe, but just 4 years ago there was no official integration of the Beijing Olympics with social media platforms.  At that time Facebook and Twitter had 100m and 6m users respectively.  Today's user figures are 845 million and 140 million respectively and we have sanctioned integration with the official Olympics hub.



With those factors what more perfect environment do we have for social community engagement?

But, but, but...as most of us are aware of by now, there is a suite of fiendish (not a technical legal term but you know what I mean) legislation surrounding use of anything to do with the London Olympics.  Legislation in the host country is enacted specifically for each Olympic Games, and the laws created for London are the most stringent that have ever been created and involve some concepts new to the Olympics.

 


Now, I'm not a novice in this area - I have a degree, a diploma in Intellectual Property and have been a specialist in this area of law for nearly 18 years - and yet to interpret the network of legislation and guidance for the London Olympic Games as it applies to social media usage is a ... challenge.  LOCOG (the organisation with responsibility and authority for the London Games) has issued some helpful guidance for brands and advertisers generally.  But the application to social media still presents particular questions.

We are aware that there a lot of moderators, community managers and agencies both in London and globally who need to know what is and is not permitted around the Olympics.   So here is Part I of our three part as-user-friendly-as-possible guide to social media usage around the Big Event.

This first blog gives an overview of the legislation, particularly as it applies to brands who have not purchased sponsorship rights to the London Olympics.

The most important question is: where is the proposed content coming from?

(i) From people directly involved with the Olympics in some way; this could be:

  • an "accredited person" (athlete, coach, trainer, official, accredited journalist)?
  • a volunteer ("Games Maker")?
  • a ticket holder in an Olympic venue?


If so, special rules apply, that last only for the Olympic Period (18 July to 15 August 2012).  LOCOG has published specific social media guidelines for this type of content.  This is a whole blog in itself which we'll post next week.

(ii) From Joe Public - are you a private individual, tweeting or blogging just for fun?

So long as you are not in category (i) above and don't get any commercial benefit from your blogs/tweets (no advertising, no affiliate schemes, no paid-for promotions, no book deals etc.), then you are pretty much free to comment and talk about the Olympics.  Although do remember that the usual rules about copyright in photos, audio and video apply and to take care with trade marks.

(iii) From brands

So that 'just' leaves the industry of social media - businesses, agencies, individuals who are creating and engaging in dialogue with their communities.  The beauty of social media is the direct engagement between brands and their customers, the ability to blur distinctions between 'them' and 'us', to genuinely participate in community together.  It is this blurring and dialogue created by social media that makes application of the legal rules surrounding the London Olympics so difficult.
This blog delves into the legal framework for this type of content.

The legislation for brands

In legal terms the key legislation here in the UK is the London Olympic Games and Paralympic Games Act 2006 ("the Act").  Countries around the world have enacted similar legislation.  For our purposes, the Act and prior legislation created two key rights:
(1) the 'Olympic Association Right' (OAR)  and 'Paralympic Association Right' (PAR); and
(2) the 'London Olympic Association Right' (LOAR).

(1) OAR/PAR is about rights to use the well known symbols and representations associated with all Olympics.  These are rights we are familiar with from previous Olympic Games.  See the LOCOG brand guidance for a full list.

(2) LOAR is a new right created specifically for the London Olympics.  The LOAR is a right to be "associated with" the London Olympics.  This sounds broad, vague and far-reaching because it is.  Essentially if whatever use of whatever content you are making might create an association for customers/users/readers with the London Olympics, this will be a breach of the LOAR.  It is the most far-reaching intellectual property right known and highly subjective.  Concrete examples are needed to understand how it works - see Part II for more detail on this.

The key legal points to know about for OAR and LOAR are:

  • infringement requires use, in the course of trade, in relation to goods or services and without the owners' (i.e. the Olympics authorities') consent;
  • if you are accused of use of the OAR/PAR (i.e. classic Olympics representations), the usual burden of proof is reversed i.e. you are guilty unless you can prove you are innocent  *gulp*;
  • for LOAR infringement, the usual burden of proof applies.  i.e. innocent unless proven guilty. 
  • defences and exemptions apply to both.  I've outlined these below.  

Other prohibitions to be aware of include:

  • no use of Olympics tickets as part of competitions;
  • no holding of conferences or seminars on the topic of the Olympics. 

The exemptions and defences to infringement
It is safe to use the Olympic symbols and words where there is a defence or exemption.  The most relevant specific defences/exemptions to the OAR/LOAR are where the content in question is:

 

  • a statement which "accords with honest practices" as this will not create an association.  LOCOG clarified that key factors here are: is the statement true and accurate? Is there any suggestion or implication of a connection with the Olympics? Is there any unfairness to the interests of the Olympic authorities (and presumably their official sponsors)? Is the context of use relevant? 

 

 

  • part of publishing or broadcasting a report or information about the Olympics.  This must be a genuine journalistic report.  No sponsoring of news conferences is permitted (e.g. "news report brought to you by Brand X").  LOCOG has specified that this does not apply to "marketing collateral" such as corporate newsletters.  A potential grey area is where a brand might report on events via its social media channels - we look at this in more detail in Part II of this blog. 

OAR: If you use Olympic symbols or words, warning signs should be flashing

Any commercial social media posting that includes the classic Olympic symbols or the words Olympics, Paralympics or derivations of these should be a massive warning symbol to check.  Without the consent of the Olympics authorities, use of these in any commercial social feed that is not covered by any of the Defences (see above), will be an infringement.

In essence, a good rule of thumb to apply is: always avoid the symbols and words connected with Olympics/Paralympics unless it is really nothing to do with the Olympics or it is a genuine facts-only report which is not unfair or suggesting a connection i.e. like this blog.

LOAR: we can't be 'associated with' the London Olympics - how broad is this?

The Act defines "associated with" as suggesting any kind of contractual or commercial relationship, any kind of corporate connection or provision of financial or other support (i.e. free services or sponsorship).

In our view, the broad scope of this right is, in a sense, an acknowledgement of the creativity of agencies and brands past and present.  Incidents from Olympic Games past such as Linford Christie wearing contact lenses showing a white puma (Puma were not a sponsor) at the Atlanta Games mean that the Olympic powers-that-be decided to turn the legislative approach for London 2012 on its head; instead of giving rules the London 2012 LOAR laws focus on the overall impact of any activity.

Trade mark law (generally and for previous Olympic Games) usually has specific and fairly clear rules re what you can and cannot do.  Historically, at the Olympics non-sponsor brands have always found very creative ways to get around and become associated with the Olympics without paying the huge sponsorship fees (otherwise known as "ambush marketing").  The new LOAR rules aim to put a stop to this.  For London 2012, we have a subjective, results-based approach with some general guidance.  This means there is no real way to get around it and win.  If a brand succeeds in being associated with the Olympics without being a sponsor, it is in breach of the LOAR.

LOCOG's guidance suggests that any "concerted marketing campaigns or promotional events framed around the Games" are likely create an association and thus infringe the LOAR.

So, we have a subjective, results-based test: does the brand's content or is proposed campaign likely to or intended to create an association with the Olympics in the mind of the user?  If so, it's likely to infringe the LOAR. 

There are some words to watch for to help us check when we might breach this LOAR.  These are called the Listed Expressions:
  • List A : "games", "two thousand and twelve", "2012" and "twenty twelve";
  • List B: "gold", "silver", "bronze", "London", "medals", "sponsor" and "summer". 
If you use two words from List A (e.g. 2012 Games) together or one from List A with one from List B (Gold Games), this is something that a court 'may...take account of' when deciding infringement of the LOAR.
So, another rule of thumb is watch out for combinations of these Listed Expressions and assess that content in more detail before publishing. 

 

All clear then?  OK maybe not.  In fact, what we are finding with our community management and moderation teams is that the subjectivity of the LOAR legal test means it is tough to create guidelines (although there have been some helpful publications on this, particularly this report from The Guardian and yesterday's CAP quiz to LOCOG).

What we have found very useful is to look at specific examples of what the LOAR means in practice for social media professionals.  Here is Part II: a handy lists of Do's and Don'ts.


This post was written by Rachel Boothroyd, Legal Counsel, eModeration.