London Olympic Games and Paralympic Games Bill

I am not sure that will be the case technically. Let me give an example of a case based on section 17 of LOGOC’s guidance, which is very interesting. The guidance states:"““Although not technically a defence, Schedule 4 Paragraph 1(2)(b) of the Bill (which carves out ‘honestly made statements’ from the definition of what creates an infringing association with the Games) operates as such. It also equates to the Section 4(2)(b) defence in OSPA””." The guidance continues:"““LOGOC considers that the key factors as to whether a statement will benefit from these provisions are:""whether the statement is true/accurate;""whether, despite being true and accurate, the statement might, given the context in which it is used, cause confusion or misunderstanding, or be misleading as to the relationship between the good or service that is the subject of the advert and the Games””," and so on. One can say, ““You, as LOGOC, raise the issue of confusion. You are causing confusion. Paragraph 3(1) comes into effect. How do you, as a defendant in those circumstances say that it is not causing confusion? What do you need to demonstrate to show that it is not causing confusion? The onus is entirely on you to demonstrate a negative in those circumstances””. That seems to me to be a very tall order, and it is in the guidance. Then, we have the second case under the heading, ““Other factors which may contribute to the creation of an infringing association under LOAR”” in section 20 of the guidance. It states:"““As mentioned above, when considering if something infringes LOAR, it is essential to look at all the relevant factors—the words, images or other representations used cannot be considered in isolation””." So there is a bundle of issues there. It is not good enough for a defendant to say, ““Well, there’s a bit of evidence about that use and that context in which we’re operating””, because LOGOC will simply say, ““What about the other context?””, and there will be a game of ping-pong. Where there is a presumption of liability, the situation is very difficult because it is game, set and match. If you can demonstrate only a single line of evidence and you cannot rebut the presumption right across the board, you are in deep trouble. What I have said comes from reading the guidance; it is not something that I have conjured up. LOGOC seems to be relying on examples in order to interpret this association right, and that is exactly the kind of thing with which the advertising industry is concerned. The Minister is absolutely right about the good will aspect here. This is not fabricated indignation; serious commercial concern is being demonstrated. If we are not careful, particularly in those two sets of circumstances, people will find themselves in a legal quagmire where all the cards are held by those who are alleging infringement. That does not seem to us to be healthy. I listened very carefully to what the Minister said about the process that LOGOC will go through. I have considerable regard for those who will be running LOGOC, and I am sure that the clearance system will be set up in as enlightened a way as possible. But there is a real issue here. This presumption is dangerous in many ways. It is extremely unusual. It has not been used in other circumstances, and it should not be on the statute book, even for something as vital and important as the Olympic Games.