Australian Olympic Committee, Inc v Telstra Corporation Limited [2017] FCAFC 165

Thursday 26 October 2017 @ 10.18 a.m. | Judiciary, Legal Profession & Procedure | Legal Research | Trade & Commerce

Yesterday, the 25th of October 2017, the Full Court of the Federal Court upheld the judgement of Federal Court judge Michael Wigney in an appeal from the Federal Court case: Australian Olympic Committee, Inc. v Telstra Corporation Ltd [2016] FCA 857. In their judgment, Australian Olympic Committee, Inc v Telstra Corporation Ltd [2017] FCAFC 165, Justices Greenwood, Nicholas and Burley held that the primary judge did not make any error of law in finding that Telstra was not misleading consumers into believing that it was the official sponsor of the Australian Olympic Committee (AOC) in its presentation of a number of ads regarding the Rio Olympic Games. As stated in paragraphs 152 and 153 of the judgment:

“In the present case the primary judge found that the Rio TVC itself did not convey a prohibited representation or suggestion. It followed that the disclaimer was unnecessary.  We have upheld the primary judge’s finding in relation to the Rio TVC. It follows that this aspect of the appeal does not succeed. 

Furthermore, in our view the primary judge’s evaluation of the disclaimer does not reflect error in any event. It was plainly open to him to reject the contention that a viewer would consider the disclaimer that Telstra is not an “official sponsor of the Olympic Games”, as an assertion that Telstra was an unofficial sponsor of the Games.” at [152] - [153]

Background

Around the time of the 2016 Summer Olympic Games held in Rio de Janeiro, Brazil, in August 2016, Telstra (the respondent) undertook an extensive marketing campaign which promoted the Seven Network (Operations) Ltd (Seven)’s live broadcast of the Rio Olympic Games. Prior to the 2016 Olympics, it is important to note that Telstra was the official sponsor of the Australian Olympic Committee (AOC) but the sponsorship rights had been bought out by Optus prior to the games. As such, in light of the advertisements by Telstra, the AOC contended [at paragraph 1] that:

“the campaign amounted to ambush marketing of a type that is prohibited by the terms of the Olympic Insignia Protection Act 1987 (Cth) (OIP Act) and amounted to misleading and deceptive conduct in breach of provisions of the Australian Consumer Law (Schedule 2, Competition and Consumer Act 2010 (Cth)) (ACL). A particular focus of the AOC’s complaint was that certain promotional materials made use of expressions protected for the exclusive use by the AOC including “Olympic” and “Olympic Games”.  It sought orders including injunctions to restrain the marketing, and declarations of breach and damages.”

The Primary Judgment

The primary judge found that Telstra’s advertisements and promotions of the Seven Network did not amount to misleading and deceptive conduct. In making this finding, it was held that the critical question was whether the advertisements made it sufficiently clear that Telstra’s advertising and sponsorship-like arrangements were made with Seven, not with an Olympic body. In doing so, he framed the question as (at [91] of the primary judgment, referred to at [63]):

“Does it make it sufficiently clear that Telstra customers can watch the Rio Games on their mobile devices using the Telstra network because Telstra is Seven’s partner or sponsor, not because it has any arrangement with any Olympic body?”

In answer to this question, the Primary Judge held that in the context of Telstra’s marketing campaign, the impression that was given to customers was that its partnership in relation to the Rio Olympic Games was with Seven Network and not with an Olympic Body. This judgment was made as the result of an analysis of the array of different advertising mechanisms employed by Telstra including: website videos, Rio TVC, and Telstra catalogues. While the primary judge found that some of these media advertisements were borderline, for example the Rio TVC campaign which contained a degree of ambiguity around the connection of Telstra with the Seven Network, the overall Telstra campaign did not, on balance, “suggest to a reasonable person that Telstra was a sponsor of, or provided sponsor-like support to, any Olympic body” [at 69].

With regards to the Australian Consumer Law question of misleading or deceptive conduct, the primary judge found that the case was not made out, as there was no misleading or deceptive conduct. At paragraphs [139] and [140] of the primary judgment, referred to at [75]:

“… That arrangement included Seven providing Telstra customers with free premium access to the Olympics on 7 app through which Seven’s broadcast could be viewed. It is difficult to see how Telstra could be precluded from promoting or advertising the fact that it was a sponsor of Seven’s Olympic broadcast and was able to offer its customers free premium access to Seven’s app. It is equally difficult to see how Telstra could do so without in some way referring to the Rio Olympic Games, at least in the context of its sponsorship of Seven’s coverage or the ‘Olympics on7’ app. The thing that Telstra could not do is imply or intimate, by words, images or association, that it sponsored or had some other affiliation with an Olympic body or bodies.

The long and the short of it is that conduct by Telstra which amounted to nothing more than Telstra advertising or promoting its relationship and arrangements with Seven, including with respect to the Olympics on 7 app, could not fairly be regarded as misleading or deceptive. Representations which did not go much beyond conveying Telstra’s relationship and arrangements with Seven, including in relation to the Olympics on 7 app, would not, or would not be likely to, relevantly mislead or deceive. That would be so even if the advertisement plainly related to, or even sought to capitalise on or exploit, in a marketing sense, the Rio Olympic Games. …”

The Judgment on Appeal

On appeal, the judges of the Federal Court of Australia held that the primary judge did not err in his judgment, and thus held that he was open to finding that Telstra’s advertisements did not mislead or deceive the public under the Australian Consumer Law.

In their judgment, the Full Court considered a number of arguments against the validity of the primary judge’s reasoning including that “the primary judge erred in reaching his conclusion that the Telstra advertisements did not evoke a connection with a relevant Olympic body” at [112]. In making their judgment, they therefore held that the question that they were to answer was (at [117]): “whether, after conducting a real review of the evidence at trial and of the primary judge’s reasons for judgment, the Full Court concludes that his Honour has fallen into error.” In answering this question, the Full Court considered the Rio TVC and the balance of the Telstra advertisements, and further concluded that the primary judge made no error in his findings.

“In the present case given the nature of the issues raised, it seems to us that his Honour’s views on the effect of the Telstra advertisements and the representations and suggestions they conveyed should be given considerable weight unless those views are shown to be affected by some relevant error of law or fact.  The fact that in the present case another judge could have attributed different weight to a consideration which was undoubtedly taken into account by the primary judge, and by doing so, might have arrived at a different outcome, does not demonstrate error. To argue in this way does no more than to contend for a different conclusion to that which it was open to the primary judge to reach. [116]

In relation to the broad challenge made to the conclusions of the primary judge as to the general thrust of the Telstra advertisements, the question is whether, after conducting a real review of the evidence at trial and of the primary judge’s reasons for judgment, the Full Court concludes that his Honour has fallen into error.  For present purposes the high point of the AOC’s case on appeal, as at trial, lies in the Rio TVC.  In the case of that advertisement, the primary judge considered the overall broad theme or story of the advertisement, including the imagery used and the use of the protected Olympic expressions and his interpretation of the message conveyed by the advertisement. He considered at J[88] that the broad message is that events at the Rio Olympics can be watched live on mobile phones or tablets using the Telstra network. His Honour then posed the question at J[91] whether the advertisement makes it sufficiently clear that Telstra customers can watch the Rio Games on their mobile devices using the Telstra network because Telstra is Seven’s partner or sponsor, not because it has any arrangement with any Olympic body.  After further considering the spoken and written words in the advertisement, he considered that the advertisement conveyed, on balance, that Telstra’s relationship was with Seven, not with any Olympic body. His Honour then turned to consider specific matters raised by the AOC in its submissions, including Telstra’s intention in employing an Olympic expression and the responses to an internal Telstra survey. The primary judge considered both to be relevant to the OIP Act claim and the ACL claim. Ultimately, as we have noted, the primary judge considered that, on balance, and although the matter was not entirely straightforward, the Rio TVC did not convey the relevant suggestion or representation under either Act. [117]

We have considered the Rio TVC and the balance of the Telstra advertisements and do not consider that the reasoning of the primary judge reflects error.  The “going rogue” argument advanced by the AOC on appeal amounts to a contention that the primary judge missed the general point to the advertisement and failed to have regard to its overall message. However, it is plain from the primary judge’s reasoning that he had regard not only to the detail of its contents, but also to what was conveyed in a general sense. He did not miss the point, either in respect of the Rio TVC or the other Telstra advertisements [118].”

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Sources:

Australian Olympic Committee, Inc. v Telstra Corporation Ltd [2016] FCA 857

Australian Olympic Committee, Inc v Telstra Corporation Ltd [2017] FCAFC 165

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