Appeared in the Toronto Star on March 19, 2007 as Bill C-47 Not in the Spirit of Olympics
The 2010 Vancouver-Whistler Winter Olympics are still three years away, however over the next few weeks the Games will take centre stage in the House of Commons. Earlier this month, the Government introduced Bill C-47, legislation designed stop companies or individuals from associating themselves with the Olympics without paying for the privilege of doing so (a practice called "ambush marketing").
The bill, officially titled the Olympic and Paralympic Marks Act, is better characterized as the Olympic Corporate Sponsor Protection Act, since its primary purpose is to protect the multi-million dollar investments of corporate sponsors such as Bell, Rona, and the Royal Bank of Canada.
The Vancouver Olympic Committee (VANOC) is extremely sensitive about ambush marketing, claiming that its contract with the International Olympic Committee (IOC) mandates that it prevent the practice in Canada. Indeed, the VANOC website even contains a lengthy linking policy that purports to set strict limitations on the ability to link to the site, particularly those links that might be construed as creating an "unauthorized association."
Anti-ambush marketing legislation has been introduced in several Olympic host countries. Australia had an ambush marketing law in place for the 2000 Summer Games in Sydney and the United Kingdom introduced a similar bill soon after it was awarded the 2012 Summer Games.
Perhaps owing to the nature of the bill – it is by-definition special interest legislation unveiled just days before an IOC visit to Vancouver – government ministers did not appear particularly anxious to grab the spotlight that typically comes with the introduction of a new initiative.
Industry Minister Maxime Bernier issued a press release but was nowhere to be found when the bill was introduced in the House of Commons. Similarly, neither David Emerson, the Minister for the Vancouver-Whistler Olympics, nor Helena Guergis, the Secretary of State for Foreign Affairs, International Trade, and Sport, stepped up to the House of Commons podium. Instead, it was left to Jay Hill, the government whip, to give the bill first reading at a time when most of his colleagues had already left Ottawa for the start of a two-week break.
The bill guards against ambush marketing in two ways. First, it grants broad protection to a wide range of Olympic marks including the word Olympics, the Olympic five-ring symbol, and the Olympic slogan "higher, faster, stronger." Moreover, the bill lists nearly twenty expressions that, when used together, also garner protection. These expressions include generic words such as "games", "2010", "medals", "gold", "silver", "bronze", "Vancouver", and even "winter".
In order to address concerns that granting protection to generic words may encroach on freedom of speech, the bill contains an exception that excludes criticism or publication and news reports relating to the Olympic Games from the ambit of protection. The exception needs tinkering, however, since its narrow drafting potentially excludes parodies of the Olympics and non-conventional news reporting from bloggers or podcasters.
Indeed, despite the assurances from VANOC that the law will be applied in a "disciplined, sensitive, fair and transparent manner," the experience in other countries suggests that the legislation will create a chill for artists, bloggers, and social commentators who fear that their legitimate expression may lead to a date in court. For example, an Australian animal rights activist was forced to stop distributing t-shirts that contained an image of a hen in a cage with five eggs, since the Australian Olympic Committee believed that the five eggs resembled the five-ring symbol.
Second, the bill gives VANOC the power to obtain an injunction to stop the distribution of goods that might violate the law. This provision remarkably eliminates the traditional requirement to demonstrate irreparable harm in order to obtain an injunction. Canadian courts have set a high threshold for irreparable harm, typically requiring evidence that monetary damages alone will not fully compensate the injured party. In the case of ambush marketing, it is likely that VANOC would rarely meet that standard since the opposite is true – the damage likely could be quantified and appropriately compensated.
Beyond its substantive shortcomings, the bill raises more fundamental concerns about legislative fairness. Special interest legislation, particularly legislation blatantly designed to protect a select group of corporate interests at the expense of free speech, should have no place in a government focused on trust and accountability.
Protecting the investment of Olympic corporate sponsors may be a worthwhile goal, yet there is a price to be paid for eliminating court-ordered safeguards and granting control over generic words to a private entity. Canadian Olympic organizers have pledged to "own the podium" in 2010, yet Canadians might ask whether they must own words such as "winter" in order to do so.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
