London Olympic Games and Paralympic Games Bill

moved Amendment No. 71:"Page 50, line 1, leave out ““as a necessary incident”” and insert ““in the course””" The noble Lord said: I am sorry that the noble Lord, Lord Brooke, is not with me today to give his usual firepower, but I shall struggle on in my own way with Amendments Nos. 71 to 74. Schedule 4(8) as drafted—the Minister has talked about its benefits—tries to list the various forms of usage where a representation which might otherwise breach the association right will be permitted. The problem with this approach is that the list has potentially to be all-encompassing if it is to be effective. The concern on these Benches, as well as in the newspaper and broadcasting industries, is that the present wording does not cover all editorial usage. We will have to get this part of the Bill right as the media will want, and have, to rely on sub-paragraphs 8(a), (b) and (c). Their usefulness will depend on the courts’ interpretation of ““incidental inclusion””. The judgment in The Football Association Premier League v Panini UK Limited gives rise to considerable concern about the interpretation of the phrase ““as a necessary incident””. I am sure that the Minister has studied the case in order to respond to the amendment. That judgment indicated that it is a restrictive and high test to go through. Similar amendments were presented in Committee and on Report in the other place. Mr Caborn, the Minister, said:"““The principle of a journalistic and editorial exemption is obviously crucial. The proper balance must be struck between protecting the commercial viability of the London games on the one hand and preserving legitimate editorial and journalistic comment on the other . . . We want to prevent the proliferation of advertorials, the real motive of which is commercial gain, rather than genuine editorial comment . . . All legitimate editorial and journalistic practices will be exempt from the provisions in schedule 3””." He referred to news, current affairs, criticism and review and said,"““the current drafting of the Bill exempts such journalistic practice””.—[Official Report, Commons 6/12/05; cols. 824-25.]" Mr Caborn also wrote on the subject of ““necessary incident”” in a letter dated 20 December to the Newspaper Society. He stated that the term had been used to prevent ““gratuitous reference”” to the Olympics. He stated that if a reference was used,"““as part of usual journalistic practice, including in comment pieces, readers’ letters and other reports, it will be a ‘necessary incident’ of the piece and will not therefore fall foul of the association right””." He wrote that this would ensure that ““legitimate references”” to the Olympics were covered,"““whilst preventing uses which are not legitimate, such as advertorials””." On LOGOC’s role in this respect, Mr Caborn stated in the letter,"““it will be for the courts to decide whether any infringement has taken place. LOGOC will only go to court as a last resort and will always bring alleged infringements to the notice of the relevant person before taking legal action””." That is very much what the Minister said earlier in another context. The letter continued:"““LOGOC cannot exert control on editorial freedom as they have no role in deciding what can and cannot be published””." That is the background, which is on the record. However, qualification as a ““necessary incident”” implies a test and an evaluation of why the reference was made; that is, a scrutiny and an assessment by LOGOC of whether, in the context of that news item or feature, a reference was necessary. As contemplated by sub-paragraphs (a) and (b), there could be a news report in which a reference to the Olympics could be made but where such reference was not deemed a ““necessary incident””. If the intention of the provision is to protect all journalistic and editorial usages, sub-paragraphs (a) and (b) should say so. The substitution of the words ““in the course of”” by our Amendment No. 71 would achieve this. There is still, however, the continuing proviso that such usage must be editorial. This will suffice to restrict the use of the defence. But why did Mr Caborn refer to ““legitimate”” journalistic activity? What is not legitimate? Who decides? This seems to imply a worrying assumption that an area of activity exists which, although it is editorial and journalistic, is somehow not to benefit from the exemption. Then we come to the role of LOGOC, which may not be a body established by statute, but it is a body with statutory powers pursuant to this Bill. Its remit is to police the association right and it will be issuing guidance on its interpretation of the Act in that regard. There is real concern about the parameters of its remit so far as the media is concerned. It may not have any right to determine editorial content, but it will certainly have the ability—and, indeed, the duty—to act if it deems that an association has been made in an editorial context that does not fall within paragraph 8 defences. That might include, for example, that in LOGOC’s view the reference was not made as a necessary incident of publishing the relevant news, feature and so on. There is nothing to prevent LOGOC adopting a strict interpretation of this provision. The addition of,"““any editorial usage including without limitation””" in Amendment No. 72 would remove the risk of any form of editorial usage being inadvertently omitted from the list. It would make clear that any bona fide editorial material benefits from the exemption provided by paragraph 8 and that the list of usages that follows—news, current affairs and so on—is indicative, not exhaustive. This is on all fours with what the Government say the paragraph is intended to do, so why not make that clear in the wording? This approach would not risk opening of the floodgates. The distinction between editorial and advertising usage is clear. In a newspaper, for example, advertising is quite simply space that is paid for by a third party and where the third party controls the content. The Government’s repeated references to ““advertorials”” and their apparent concern in relation thereto are completely misplaced. ““Advertorials”” are not, and have never been, considered as editorial material of any kind. They are advertisements, pure and simple. The space is paid for by a third party, and its content is determined by that third party. They fall within the jurisdiction of the code of practice administered by the Advertising Standards Authority, and the distinction between editorial and advertising is clear. By referring to ““all editorial usage””, there is no danger of inadvertently allowing some form of advertising usage to slip though the net. Amendment No. 73 provides for the deletion of ““about the London Olympics”” in paragraph 8(b) of Schedule 4 to the Bill. This is necessary because otherwise the exemption will not cover references to the Olympics that are made in articles that are primarily not about the Olympics. For example, a newspaper publishes a story about a recent survey of sports provision at local primary schools, and particular reference is made to a local swimming pool and the fact that one of the Team Great Britain swimmers trained there. Suppose, for the sake of example that that was read as implying an association, the story is not within paragraph 8(b) as the news item is not about the London Olympics. Secondly, suppose a local restaurant writes in response to recent articles about traffic congestion and the lack of parking spaces and points out that it, and other businesses, will be running special promotions during the Olympics and therefore the council needs to get a grip on the problem before it gets worse. Again, the item is not about the London Olympics per se. Then in Amendment No. 73 there is the addition of,"““news or current affairs and for the purposes of criticism or review””," These are illustrative examples of editorial usages that the Government say are within the exemption, so there can be no objection to referring to them within the paragraph itself for the avoidance of doubt. Finally, Amendment No. 74 relates to paragraph 8(d) adding reference to ““(c)””. This is purely a consequential amendment. I beg to move.