London’s 2012 Olympic Games have already been entangled in one censorship controversy. But measures that will be in force during the game themselves pose a far greater threat to free expression, says Aileen McColgan
In October 2005 the Sunday Times reported that ‘[a]s many as 55,000 members of the “Olympic family”, including ministers, media and corporate sponsors’ would be permitted to make use of dedicated road lanes in London during the 2012 games, while other drivers faced being herded into the remaining lanes — with £5,000 fines for those who rebelled. The legal powers in question were to be created by the London Olympics and Paralympics Bill as it then was. According to the article, among those benefitting from the special lanes would be around 12,000 corporate sponsors and their guests.
Politburo-like transport privileges are not the only corporate gifts to be found in what is now the London Olympic Games and Paralympic Games Act 2006. Section 19 of the Act provides a legal basis for the executive regulation of advertising ‘in the vicinity of London Olympic events’. Of particular concern to some, the Act provides that the regulations ‘may apply in respect of advertising of any kind’, including non-commercial advertising and ‘announcements or notices of any kind’.
‘Advertising’ may include ‘the distribution or provision of documents or articles’, ‘the display or projection of words, images, lights or sounds’, and ‘things done with or in relation to material which has or may have purposes or uses other than as an advertisement’. The executive is empowered by the Act to impose obligations on the owners and occupiers of properties, and breach of the regulations will be an offence punishable by an unlimited fine. Further, the police will be entitled forcibly to enter property to ‘remove, destroy, conceal or erase’ anything deemed inconsistent with the advertising regulations.
The Act’s provisions on advertising are objectionable because they cede to the executive the power to make draconian rules, rather than risking parliamentary vote on the content of those rules. The threat of ‘ambush marketing’ (as at the 1996 Atlanta Games, when Nike swamped the area around the Olympic sites with advertising to the chagrin of Adidas, an official sponsor) may well justify some restrictions. Indeed so dependent is the International Olympic Committee on sponsorship (worth around £200 million a year in 2005) that it imposes stiff requirements on host nations to deal with this threat. London has already secured all the billboards around the Olympic sites for official sponsors. But the Olympic Act would provide a legal basis for the criminalisation of those wearing Pepsi Cola T-shirts or Burger King baseball caps (Coca-Cola and McDonald’s being official sponsors). This is objectionable enough. But the extension of ‘advertising’ to include non-commercial advertising and ‘announcements or notices of any kind’ is worse again, covering as it would the display of a notice protesting against sponsors’ labour practices, or their contributions to global warming or the epidemic of obesity. Further, advertising restrictions may apply well beyond Olympic arenas to, for example, the front windows of private homes in the vicinity of the games. The prospect of heavy-handed coppers breaking down front doors to remove offending posters in the bay windows of private homes is perhaps alarmist. It is, however, within the contemplation of the Olympic Act.
The Olympic Act carries obvious implications for freedom of speech. Any regulations passed under it will be subject to the European Convention on Human Rights, given effect to in the UK by the Human Rights Act 1998, and in particular to Article 10 thereof. That article, which protects the right to freedom of expression, allows restrictions that are ‘necessary in a democratic society, in the interests of [amongst others] national security, territorial integrity or public safety … [and] the protection of the reputation or the rights of others’. It is doubtful whether the protection of corporate sponsors against competition in the form of the occasional T-shirt or baseball hat, or the gagging of their critics, falls within the permissible limits on free speech. It is a matter for regret, however, that the Olympic Act has created the scope for regulations which will exercise an extraordinary chilling effect on freedom of expression, subject to eventual Human Rights Act challenge to them by individuals sufficiently robust and resourceful to tolerate the prospect of criminal conviction.
Aileen McColgan is a professor of law at King’s College, London
