Revised legislation has been issued this week stating that exhibitionists baring their flesh for marketing stunts in and around 2012 Olympic venues could face criminal charges and fines of up to £20,000 in the magistrates court.
CEOs, marketing directors and other senior staff of brands appearing in "ambush marketing" in the vicinity of Olympic venues will be presumed guilty unless they can prove their innocence by proving that they had no knowledge of the activity or that they took reasonable steps to prevent it happening.
The Department for Culture, Media and Sport (DCMS) noted the risk of human bodies being used for ambush advertising following concerns raised in a recent consultation process. It has promised to "make additional changes to prohibit advertising on the human body". It says the legislation is "reasonable and proportionate", and that the matters a person is required to prove in their defence are "entirely within their knowledge".
However, advertising lawyer Nick Johnson, a London partner at international law firm Osborne Clarke, said: "This part of the Regulations is bad law. Exactly how is a CEO, a marketing director or a legal director supposed to prove they had no knowledge at all of an infringing act featuring their brand?
“"Mostly, this is robust but balanced legislation. It shuts the door on lots of ambush marketing techniques we've seen in the past: Betfair's birds of prey at the Ryder Cup, Gail Porter on the Houses of Parliament, Linford Christie's Puma contact lenses - all these would be caught under the tough provisions of this new law. But the provisions targeting senior businessmen and women within brands will serve only to spawn a small industry around written anti-ambush policies.
“Just as every business now has an anti-bribery policy, so board directors wishing to avoid personal liability for infringements by overenthusiastic marketers and agencies will have to implement written policies to help show they have taken all reasonable steps to avoid a breach. This is the kind of unnecessary red tape we could all do without."