Telstra allowed to continue Olympic advertisements by court

The Australian Federal Court has ruled in favour of Telstra, with Justice Wigney dismissing the application by the Australian Olympic Committee (AOC) to get Telstra to halt its "I go to Rio" marketing campaign despite not having an AOC licence.

Wigney J also ordered that the AOC pay Telstra's costs.

Last week, the AOC argued in court that Telstra had contravened both the Olympic Insignia Protection Act (OIPA) and Australian Consumer Law (ACL) through its Rio marketing campaign, as it does not have an AOC licence to advertise about the Olympic Games.

"In any event, the marketing material does not clearly show an intention on the part of Telstra to suggest that it had a sponsorship-like relationship with the Olympics," Wigney J's reasoning said on Friday.

Justice Wigney therefore concluded that Telstra had not breached the OIPA.

"The AOC has not proved, on the balance of probabilities, that Telstra contravened s36 of the OIP Act," Wigney J's reasoning said.

"None of the advertisements, videos, catalogues, emails, or online materials, or other marketing or promotional materials that employ the Olympic expressions, would suggest to a reasonable person that Telstra is or was a sponsor of, or is or was the provider of sponsorship-like support, to any relevant Olympic body."

Nor did Telstra breach the ACL, Justice Wigney found.

"The long and 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," his reasoning said.

"The AOC has not demonstrated that any of the individual Telstra advertisements, marketing, or promotions, or Telstra's overall 'Go to Rio' campaign, conveyed a misleading or deceptive representation, or involved misleading or deceptive conduct. The AOC has accordingly failed to demonstrate that Telstra contravened either s18 or ss29(g) or (h) of the Australian Consumer Law."

During fast-tracked proceedings in the Federal Court, the AOC said both the development of Telstra's advertising campaign and the campaign itself breached the legislation in an effort to gain customers by using a "back door" for commercial gain without paying for association with the AOC.

"It's a very extensive, no doubt extremely well thought out, very extensive advertising campaign, which a significant part extent of it is ... trading off what's about to happen in a few weeks' time, bearing in mind what the Olympics are about, how they resonate with the Australian population and millions of people in the world, and the fact that Telstra was a sponsor I think from 1990 until 2012," the AOC argued.

"[Telstra is] no longer a sponsor with the AOC, because it's been replaced by Optus."

The AOC claimed that Telstra was capitalising off its partnership with official Australian Olympics broadcaster Seven Network as a launch pad for its own rebranding into a technology company.

Telstra, on the other hand, had argued that it is Seven's right to broadcast the Olympics on the "ever-expanding range of technologies" available to it, including on Telstra's devices and services. It pointed out that Telstra and Seven have been marketing Seven's broadcasting across Seven's app with the knowledge and approval of the International Olympic Committee (IOC).

"Telstra is sponsoring Seven's coverage, Telstra is sponsoring Seven's 'Olympics on Seven' app, Telstra has arrangements with Seven to be designated as the official technology partner of Seven's coverage, and there's nothing that's in there that's untrue," counsel representing Telstra said.

After initially being contacted by the AOC, Telstra's ads have also carried explicit disclaimers that it is Seven's coverage, not Telstra's.

Justice Wigney last week stated that the central question to the case is whether Telstra is "exploiting" its association with Channel Seven in order to gain more customers from marketing towards the Rio games.

"The critical question, at least under OIPA, is whether to a reasonable person, the use of the expression 'Olympics' as described would suggest that Telstra was a sponsor of or was a provider for the AOC or IOC for the Olympic games," Wigney J said last week.