London Olympic Games and Paralympic Games Bill

moved Amendment No. 69:"Page 47, line 33, leave out from ““shall”” to end of line 35 and insert ““not of itself give rise to any criminal or civil liability, but in any proceedings against any person for an infringement under paragraph 2, any such use may be cited in evidence that that person has created an association with the London Olympics as specified in paragraph 1(2)(a)””" The noble Lord said: I rise with slightly more than a spring in my step, having watched some of the Winter Olympics. I have no doubt that the noble Lord, Lord Glentoran, has relived many memories himself during this week. It has been extremely interesting, except that, apart from in the splendid Scottish sport of curling, it is sad to see that we do not seem to have strength in other Olympic winter sports. I am sure that with the Government’s support, that will not apply to the Summer Olympics—certainly not in 2012. The amendment would replace the automatic presumption of guilt in Schedule 4 paragraph 3(1) of the Bill in connection with the use in certain combinations of protected words and expressions set out in paragraphs 3(3) and 3(4). If adopted, the effect of the amendment would be that if a non-sponsor used such words or expressions in the way set out in paragraphs 3(2) to 3(5) of Schedule 4, that could be cited in court as an indication that the London Olympics association right—which I shall call ““law””—had been infringed. The amendment therefore changes the effect of Schedule 4 paragraph 3(1) from being one in which the use of protected words and expressions in certain combinations would constitute an automatic infringement triggering a presumption of guilt to an indication of a possible infringement of Schedule 4. That, I would claim, is what the Government say is intended in any event. In Standing Committee in the other place, my honourable friends tabled an amendment for the deletion of paragraph 3 in its entirety, including the presumption of guilt contained in paragraph 3(1). In rejecting the amendment, the Minister, Mr Caborn, argued that the presumption was of an evidential nature rather than an actual presumption of guilt. The advertising industry is clearly opposed to ambush marketing, and it is certainly not in their interests, yet we on these Benches believe that this Bill will impact detrimentally on advertisers, with absolutely no interest in falsely associating themselves with the games, as well as on the wider advertising economy. Schedule 4 provides that alleged transgressors of the law will automatically be presumed guilty from the outset, in the absence of evidence being provided to the contrary. They will then face an injunction and/or unlimited damages. If the alleged transgressor had absolutely no intention of breaching the law, will they have collected evidence in advance in the expectation that they might in future have to prove their innocence under this legislation? In any event, what kind of evidence will be sufficient to rebut the presumption? The reversal of the burden of proof is entirely disproportionate in legislation that is designed essentially to protect the commercial interests of the IOC and LOGOC. The burden should be on LOGOC to prove the guilt of an alleged transgressor, not the other way round. The wording of the amendment is based on existing statute—namely, Section 25(2) in Part 3 of the Consumer Protection Act, which is tried, tested and effected law. That section includes a similar indicative element in respect of an infringement—in this instance, of the DTI’s recently updated code of practice for traders on price indications. That seems to us to be a pretty good precedent. In all the meetings that the advertising industry has had with DCMS officials, those officials have insisted that they intend that Schedule 4 paragraph 3(1) is only indicative of a possible infringement. The existing version of the schedule fails to achieve that, however, creating instead only great legal uncertainty. The amendment would meet the criteria sought by the DCMS while remaining proportionate. In fact, the inclusion of a reverse presumption of guilt within the legislation is an option that is not required by the IOC. It is one of several areas of the Bill where the Government have chosen to gold plate what the host city contract requires. In the course of Standing Committee D, the Minister tabled a DCMS summary of the IOC’s requirements on brand protection and ticket touting. It appears that only a summary could be produced—not chapter and verse—because the IOC requires the content of the technical manual on brand protection No. 3 to be kept confidential. Apparently the manual is still being redrafted in any event. Paragraph 3 of that summary document is headed:"““What are the IOC’s recommended methods for securing the requisite protection against ambush marketing?””." In the third paragraph of the response to that question, the following statement is made:"““To aid the application of such laws the burden of proof could possibly be reversed so that the defendant is presumed to have violated the law unless he can show that his actions have not created a link with the games””." The IOC document therefore appears to imply that the reversal of the burden of proof is not a requirement of the IOC. At a meeting that the advertising industry had with the organising committee on 31 October 2005, I am informed that the industry asked whether the inclusion of a reversal of the burden of proof was or was not a requirement of the IOC. I understand that both LOGOC and DCMS officials have confirmed that it is not a requirement of the IOC. The Bill before us today will confer additional intellectual property rights. Whether or not these additional rights are necessary, to go on to reverse the presumption of innocence in this area is wholly unjustifiable. The DCMS’s own summary of the IOC’s requirements on brand protection and ticket touting states that those responsible for organising the Olympic Games must study existing laws and identify those areas where additional legislation is needed to fulfil the IOC’s requirements. An automatic presumption of guilt is not one of those requirements. Presumably such an analysis of existing law has been conducted by the London 2012 committee and could be placed in the public domain. In summary, the presumption of innocence was not reversed in Sydney. There is absolutely no reason why it needs to be reversed in order to comply with any IOC requirements. I beg to move.