The Cricket World Cup is now upon us! This is the first in a series of 3 articles which teases out a number of topical legal issues which impact on the Cricket World Cup.
With the Cricket World Cup 2015 now underway, and the FIFA Under 20 Football World Cup looming on the horizon, 2015 is shaping up to be a big year for New Zealand hosting large, international sporting events.
The Major Events Management Act 2007 ("MEMA") is a unique piece of legislation designed to protect the interests of organisers and sponsors of large events from ambush marketing and to ensure New Zealand presents as an attractive host country. Following its maiden at the 2011 Rugby World, the Cricket World Cup in 2011 represents MEMA's return for a truly global event.
Introduced in 2007 (in time for the Rugby World Cup 2011), MEMA provides protection in three ways:
First, an event needs to be declared by the Governor General through an Order in Council as a "major event".
Secondly, once declared, the event is protected from unauthorised representations of commercial association with, or advertising within, the event.
Declarations - A Major Event
Thirdly, it provides a strict regime for enforcing breaches of prohibited action.
To obtain MEMA's protection, an event has to be declared by the Governor General through an Order in Council to be a major event. A declaration is made only on ministerial recommendation following an application by an event organiser. MEMA sets out the qualifying criteria, which includes that the event will attract a large number of local and international participant spectators, involve significant sponsorship and international media coverage, and offer substantial supporting, cultural, social, economic or other benefits for New Zealand.
Notably, an event need not be a sporting event, if it otherwise meets the criteria. However, to date, all declarations of major events have been for sporting events, including the World Rowing Championships 2010, FIFA Under-17 Women's World Cup 2008, and Triathlon World Cup Series Event 2011.
Clean zones and clean transport routes for major events may also be declared under MEMA by the Economic Development Minister:
Clean zones are primarily the major event venues and their immediate surrounds, but excluding private land and private buildings within the immediate surrounds. Many will remember the debacle of New Zealand losing its co-hosting rights to the Rugby World Cup 2003 because of the lack of clean stadia – declared clean zones will ensure there is no repeat.
Clean transport routes are those parts of motorways or state highways no more than 5 kilometres from the clean zone which is likely to be used by a substantial number of people to travel to and from a clean zone.
The Governor General can also declare major event emblems or words (including word combinations). This should not be overlooked as there may in fact be more opportunity and greater exposure for advertisers to take unauthorised advantage of logos and key words of the event, rather than attempt to advertise at the event venue itself.
The declarations last only as long as a declared protection period, which need not be limited to the period of the major event, but cannot extend later than 30 days after the major event finishes.
When a major event is declared, legal protections contained in MEMA apply to that major event. There are a number of key protections:
No person may suggest an untrue association between the major event and its business (brand, goods or services). Without this protection, sponsors would be left only with a Fair Trading Act claim or a tortious claim of 'passing off' against the advertiser.
There is a presumption that any advertisement which includes the major event emblem or words, or so closely resembles the major event emblem or words, without authorisation, creates an untrue suggestion of association;
Street trading within a clean zone, without authorisation, is prohibited unless the trading is an existing business at existing, permanent premises;
No person may advertise in, or clearly visible from, a clean zone or in a clean transport route.
There are exceptions to these prohibitions. These include
Where the advertiser has the organiser's written authority;
The advertising is done or representation made by an existing organisation carrying out its 'business as usual' activities;
The representation is a personal opinion expressed for no personal gain;
Advertising on articles of clothing for personal use unless the intention is for the advertising to intrude on the event.
Already the protections afforded by MEMA have been put to use during the Cricket World Cup. A Nelson natural juice stand was banned from selling its products at one of the matches held at Saxton Oval due to the juices being too similar to those of the tournament sponsor, Pepsi. The juice stand had operated at the New Zealand v Sri Lanka one day international at the same ground a month earlier, but that was not a major event and MEMA did not apply.
Interestingly, MEMA also specifies pitch invasion (unauthorised entry or propelling any object onto the playing surface) as an offence punishable by up to 3 months' imprisonment or a $5,000 fine. At the time of writing, there have already been three instances of 'pitch invasion' at the Cricket World Cup, with arrests made in all three for breach of MEMA.
Clearly, MEMA has to have teeth to deter and prevent parties from attempting to breach the prohibitions under protection in the legislation. Its teeth are in the form of enforcement officers appointed by MBIE, who ensure compliance with MEMA. They have power to issue warnings to prohibit trading within clean zones, seize and/or cover infringing objects in clean zones.
Enforcement officers need to act proactively in assessing whether activities breach (or may breach) the prohibitions, but not over zealously. They must act fairly and make careful considerations so as not to be seen to abuse constitutional rights or accused of 'overkill'.
The penalty for falsely advertising an association between a brand and the major event, and for trading or advertising in clean zones, is limited to a fine of $150,000. Many large companies may take a commercial risk to exploit the major event for commercial gain using a novel marketing campaign in the knowledge that their commercial gain from that campaign would exceed the maximum fine.
New Zealand's desire to make the most of the social, cultural and economic benefits that come with hosting major events means that MEMA and its broad prohibitions are a necessary evil. Major events rely heavily on financial support from sponsors, and in return, those sponsors, rightly so, demand exclusivity for their brands in the form of legal protections.
However, any enforcement of MEMA must be carefully judged. The media and public national attention to the ban the Nelson juice stand received provide the operator with more profile and public support which may help to offset its financial loss. Enforcement that comes across as 'overkill' is clearly newsworthy, which means event organisers and enforcement officers must strike a careful balance.
A measured knock is certainly the desired approach for MEMA.