London Olympic Games and Paralympic Games Bill

moved Amendment No. 27:"Page 50, line 1, leave out ““as a necessary incident”” and insert ““in the course””" The noble Lord said: In moving Amendment No. 27 and speaking to other amendments up to Amendment No. 30, I want to thank the Minister for his letter of 27 February. It is a recognition of the strength of the arguments that were made in Grand Committee. Regrettably, I still believe that the Minister has not yet grasped the exact concerns of the newspaper and broadcasting industry. The Government’s wording of paragraph 8 in Schedule 4 and their position generally on this issue seems to be based on a misunderstanding of the distinction between editorial and advertising or a needless concern that the boundaries between the two can be wilfully manipulated. In his letter, the Minister said that ““most”” journalistic activities are unlikely to suggest an association. On page 2 of the letter he says that,"““all journalistic practice is exempt from the association right created in Schedule 4””." There is no disagreement there, but on page 1 of the letter he also refers to,"““journalistic use that does not seek to advertise””." That is a contradiction in terms. The Minister is clearly worrying about what he calls advertorials, but the key issue is what journalistic activities he is worried about. Journalistic or editorial usage does not advertise. If newspapers carry advertisements they want to be paid for them. The simple and central distinction is that, broadly, advertising is space paid for by a third party, the content of which is controlled by that third party. The practices that he described therefore either do not happen or are advertisements, not editorial. Concerns in the industry have been exacerbated by the fact that the Minister referred to,"““ostensible news broadcasts which are really ‘advertorials’””," and not ““genuine news broadcasts””. Newspapers or broadcasters do not issue disguised advertisements in the guise of news bulletins. The Commercial Radio Companies Association and Sky television in particular have both emphasised to me that such things are already prevented by law from broadcasting on either commercial radio or television. For example, Ofcom requires a clear separation between editorial and advertising content. On the other hand, is the Minister in some way implying that news items based on, say, a press release from a major public company or company’s annual report will not be considered bona fide editorial usage? If so, the industry has a further cause for concern. Quite apart from LOCOG looking over editors’ shoulders about their choice of words, it seems that it will also be judging news selection. This concern is heightened by the Minister’s reference to anyone who has even inadvertently it seems created an association,"““for the purposes of a news story, to demonstrate the necessity of their actions””." If that is not interference in editorial freedom, I do not know what is. Surely, the Government cannot be implying that non-news items are not journalistic. That would fly in the face of previous assurances given on Schedule 4. There are all manner of examples of standard non-news editorial items. Journalists may, for example, write reviews for restaurants, entertainment venues, books and so forth, but those are editorial not advertising. The difference between us seems to be that the Government take the view that something can be journalistic and yet still infringe, which is why they feel they need the necessary incident test. The view of the newspaper and broadcasting industry is that if something is editorial—not advertising—it should unequivocally fall within the provisions of paragraph 8 without the need for newspapers or broadcasters to justify either their selection of news and editorial material or the words used in them. With regard to paragraph 8(c), the letter gives a fair and accurate summary of the Panini case, including the central question the court would ask itself: why was the infringing representation used? That brings us straight back to our concern that a court might take a hard line and say, ““To sell newspapers or make money for a commercial broadcaster””. That explains why we want the other parts of paragraph 8 amended, because the industry does not want to have to rely on paragraph 8(c) in the face of the Panini case. In conclusion, the basic principle these amendments try to get across is the fact that editorial is editorial, and ipso facto legitimate. Any judgment by LOCOG of why particular news items were included, or the words used in them, would be utterly unacceptable. Advertisements, however, are advertisements, no matter what they look like or who they are written or spoken by. This amendment is not a recipe for loopholes. There are certain words set out in the Bill which, when used together, still raise the possibility of infringement of the London Association right by journalists, or by editorial. Amendment No. 29 is important too, since the exception itself in paragraph 8(b) needs widening. Inclusion of those words about the Olympic Games means that the exemption is too narrow. I spoke at length on that in Grand Committee. I welcome the fact that the Minister wrote, but it is clear that his letter urgently requires further clarification, and I hope that the Minister will give us that today. I beg to move.