This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 3rd edition of The Russell-Cooke Voluntary Sector Legal Handbook by James Sinclair Taylor and the Charity Team at Russell-Cooke Solicitors, edited by Sandy Adirondack (Directory of Social Change, 2009). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Russell-Cooke Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking . It costs £60 for voluntary organisations or £90 for others, plus 10% p&p.

Chapter 45
PUBLICATIONS, PUBLICITY AND THE INTERNET

UPDATED ADVERTISING CODES

Added 7/11/10. This information updates s.45.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
A revised version of the CAP code (UK code of non-broadcast advertising, sales promotion and direct marketing) and a complete new BCAP code (UK code of broadcast advertising) came into effect from 1 September 2010. BCAP replaces four previous separate codes for broadcast advertising.

The general principles remain the same: that advertising should be legal, decent, honest and truthful. Among the new provisions are:

• personal information about a child under 12 must not be collected from the child for marketing purposes, without consent from the child's parent or guardian;
• personal information about any person must not be collected from a child under 16 for marketing purposes ;
• claims of environmental effects or benefits must be substantiated (with the level of substantiation depending on the nature of the claim) and must not be misleading.

ADVERTISING AND TRADING NEAR OLYMPIC AND PARALYMPIC SITES

Added 29/2/12. This information temporarily adds to various sections in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
As well as all the usual rules on advertising and public trading, additional strict rules under the London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011 and comparable regulations for Wales and Scotland apply near all Olympic and Paralympic sites (called event zones). These will apply during the relevant period for each site: the days of events, and the day before (four days before for the Olympic Park at Stratford). Restrictions will also apply along marathon and other event routes.

Unless it is excepted under the regulations, advertising at an event zone during the relevant period must be authorised by the London Organising Committee (LOCOG) and trading must be authorised by the Olympic Delivery Authority. The rules also apply to the air space above the zones. The deadline for applying for authorisation was 31 March 2012.

Advertising is defined very widely and includes any word, image, sound, light, sign, costume, device (and more) "in the nature of, and employed wholly or partly for the purpose of, promotion, advertisement, announcement or direction".

The restrictions cover displays of advertising material, and distributing or providing promotional material. This could include logos on clothing, words or illustrations on a person's body or displayed on an animal, skywriting, or advertisements on a mobile phone or other personal communication device if the advertiser intends them to be shown to the public at large rather than only to the individual using the device.

Particular attention is given to ambush marketing, defined as an advertising campaign consisting of an act or series of acts intended specifically to advertise a product or service or a person who provides a product or service. It could include, for example, anything from a group of people all wearing t-shirts with a branded name or logo, up to a T-mobile type flashmob dancing on the pavement.

The restrictions do not apply to individuals who wear clothing with advertising on it, display advertising on their body or carry personal property on which an advertisement is displayed, unless the individual knows or has reasonable cause to believe they are participating in an ambush marketing campaign. So it's OK to wear a branded shirt, jacket, trainers and backpack or display a tattoo with a brand name, but if the person is or looks like they could be there specifically to advertise the brand or are taking part in an organised activity, they could be in trouble.

An exception to the regulations that is significant for charities and other voluntary organisations allows advertising activity that is intended to demonstrate support for or opposition to the views or actions of any person or body of persons, or to publicise a belief, cause or campaign, or to mark or commemorate an event. This exception allows charities and other not-for-profit bodies to publicise themselves and their causes, but not their goods or services. For-profit bodies cannot use this exception to publicise either themselves or their goods or services. So a group of people wearing t-shirts with the logo or slogan of a not-for-profit organisation, or distributing leaflets about the organisation itself is probably OK, provided the t-shirts or leaflets do not advertise or promote the organisation's goods or services.

Trading, as defined in the regulations, includes making an appeal to members of the public to give money (by whatever means) or other property for charitable or other purposes, so fundraising cannot be undertaken within an event zone during the relevant period. Trading also includes selling an article, supplying a service (you will be glad to know there are exceptions for public transport, public toilets and telephone kiosks in event zones), and providing public entertainment (live music, recorded music, dance, a play, or entertainment of a similar nature) for gain or reward.

Shops, restaurants etc are exempt, as is trading on private land adjacent to those premises provided the trading forms part of their normal business (e.g. tables outside a restaurant). Other outdoor trading, such as street markets, is not allowed unless it is licensed by the Olympic Delivery Authority.

Enforcement officers can summarily destroy or remove anything that infringes the restrictions on advertising or trading. In addition, infringement is a criminal offence with a potentially unlimited fine, and officers of an organisation (governing body members, managers) can be prosecuted as individuals.

Rather worryingly, an organisation or its officers can be held to be liable if advertising occurs and they cannot prove either that they did not arrange it or that they took all reasonable steps to prevent it. So it is important that employees, volunteers, members, supporters or others who might see the Games as an opportunity to promote the organisation are aware of the restrictions on advertising and fundraising, as well as restrictions on use of Olympic and Paralympic-related words and symbols.

Information about the restrictions, including maps showing the event zones and a list of the relevant periods for each zone, is on the LOCOG website via tinyurl.com/6ob5893.

The London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011 are at www.legislation.gov.uk/uksi/2011/2898/made.

Comparable regulations for Wales are at www.legislation.gov.uk/wsi/2012/60/made,
and for Scotland at www.legislation.gov.uk/ssi/2011/458/made.

SANDY ADIRONDACK
Governance and legal training and consultancy
for the voluntary sector
39 Gabriel House, 10 Odessa Street, London SE16 7HQ
Tel 020 7232 0726; fax 020 7237 8117
Email:
Web: www.sandy-a.co.uk