Was Telstra's "Go to Rio" campaign misleading or deceptive?
133 The Rio TVCs and website videos should be approached on the basis that the class of likely viewers is very broad and wide-ranging. It would include highly educated, articulate and shrewd members of the public, as well as less experienced and perhaps even unsophisticated or gullible persons. It would include people who were interested in the Rio Olympic Games and its sponsors, but also persons who would be utterly disinterested in such matters. It would include Telstra customers and the tech-savvy, but also people who may not even use a mobile phone, let alone use apps to watch sporting events. Some of the other marketing and promotional materials were most likely directed at a narrower audience. For example most of the digital materials, including the KIT email and the authentication landing page were directed at existing Telstra network customers.
134 It is important to approach the Rio TVCs on the basis that the people within the relevant class of consumer who were likely to view them would generally be unlikely to minutely and critically scrutinise every aspect of the advertisements. The advertisements are likely to be viewed casually and subject to distraction, not intensely and in isolation. The viewer would most likely only take in the main message or theme of the advertisements. Some of the sounds and images used in the advertisements are also somewhat fleeting or transitory. Others are more likely to linger. The musical soundtrack is perhaps most likely to fall into the latter category. The appearance of the "7" logo on the screens of the mobile devices depicted in the advertisement are perhaps likely to fall into the former category.
135 The critical question, in general terms, is whether Telstra's advertisements, marketing and promotions, conveyed, or were likely to convey, to reasonable persons in the class to whom they were directed or likely to be received, that Telstra had some form of sponsorship, licencing or affiliation arrangement with a relevant Olympic body. If that message or representation was conveyed, it was misleading and deceptive and Telstra's conduct in causing the advertisement to be published or disseminated was misleading and deceptive.
136 As already indicated, this question is very similar to the question that has already been posed and answered in the context of the AOC's case under the OIP Act. In some respects, however, the AOC's misleading and deceptive representation or conduct case is slightly broader than its case under the OIP Act. The OIP Act case was more directly concerned with the use of the protected Olympic expressions, albeit in the context of the relevant advertisements and promotions. The Australian Consumer Law claim is more concerned with the overall impression conveyed by the relevant advertisements, marketing or promotional material. Perhaps more significantly, unlike the OIP Act case, the AOC's misleading and deceptive conduct case fixes not only on individual advertisements, marketing and promotions, but also on Telstra's overall "Go to Rio" campaign.
137 Nevertheless, and despite those differences, for essentially the same reasons as those given in relation to the OIP Act claim, the AOC has failed to demonstrate, to the requisite standard, that Telstra's conduct in publishing or disseminating the relevant advertisements, marketing and promotions was misleading or deceptive. Equally, it has failed to prove that the advertisements, marketing or promotions conveyed the alleged representation concerning sponsorship by or affiliation with an Olympic body or bodies. That is so whether the advertisements, marketing or promotions are viewed individually or collectively.
138 There could be no doubt that Telstra's campaign was themed around the forthcoming Rio Olympic Games. It is, however, not enough for the AOC to prove that the advertisements were Olympic themed. Were that so, any advertisement over the next month that used Peter Allen's "I Go to Rio" song (and it is not difficult to imagine that everyone will be heartily sick of that song by the end of the Rio Games) or images of people playing or watching sport, might equally be accused of misleadingly associating themselves with the Olympic Games or Olympic bodies. It may also be readily accepted that the fact that the advertisements, marketing and promotions did not expressly refer to any Olympic body, or use any Olympic symbols or emblems is not determinative. An association can be conveyed by subtle, emotive or pervasive suggestion.
139 In the case of Telstra, the position is complicated by the fact that Telstra has entered into a sponsorship-like arrangement with Seven in relation to Seven's broadcast of the Rio Olympic Games. 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 on 7' 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.
140 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. At risk of undue repetition, to make out a contravention of s 18 or ss 29(g) or (h) of the Australian Consumer Law, the AOC needed to prove no more or no less than that, considered fairly and in context, Telstra's advertisements and marketing conveyed the impression that Telstra had a sponsorship-like arrangement or affiliation not with Seven, or not just with Seven, but also with a relevant Olympic body. That it has not done.
141 As with the AOC's OIP Act case, the original Rio TVC and perhaps the original soccer pre-roll and farm pre-roll videos were the high point of the AOC's case. That is because there was a degree of ambiguity, or at least lack of clarity, in those advertisements and videos about the precise character of Telstra's connection or association with the Rio Games. The voiceover told the notional consumer that he or she could watch every event in Rio (obviously a reference to the Rio Olympic Games) with the "Olympics on 7 App and Telstra". Yet it was not made entirely clear what the Olympics on Seven app was and what was Telstra's association with it. The addition of the words "and Telstra" might also suggest that Telstra had acquired the rights to that coverage from an Olympic body. That ambiguity, however, was remedied to an extent by the final written image in the advertisements, which includes the statement that Telstra was the "Official Technology Partner of Seven's Olympic Games Coverage". Seven's relatively well known logo was also used in the words "Olympics on Seven".
142 As with the OIP Act case, these initial advertisements and videos are perhaps borderline in terms of whether they conveyed the alleged misleading or deceptive representation. On balance, however, it cannot be concluded that they convey the alleged misleading representation concerning sponsorship of or affiliation with an Olympic body. Nor would the advertisements lead a reasonable viewer to assume that Telstra sponsored or had an affiliation with an Olympic body. The important considerations again include the following: the words "Olympics" and "Olympic" are only used as part of a composite expression "Olympics on Seven" or in the context of Seven's coverage of the Rio Games; the advertisements do not refer to any Olympic body or use any Olympic emblem or symbol; the advertisements do not show images of any member of the Australian Olympic team; the sports people depicted in the advertisement are not Olympic athletes; the advertisements are about watching the Rio Olympics on a mobile device in circumstances where, ultimately, it is made clear enough that the Olympic Games coverage is Seven's Olympic coverage. Thus, the message is that Telstra's association, involvement or sponsorship was with Seven, not with any Olympic body. That was not misleading or deceptive.
143 The subsequent iterations of the advertisement and videos make the nature of Telstra's association with Seven's coverage clearer and include the disclaimer in prominent script throughout the majority of the duration of the advertisements. The information conveyed by the disclaimer is in clear terms sufficient to erase or reverse any impression that Telstra did sponsor any Olympic body. The disclaimer cannot fairly be described as transient, or ephemeral. It was noticeable and readily comprehendible. For the reasons given earlier in the context of the OIP Act claim, the disclaimer had, or was capable of having, the effect of reversing or erasing any misleading impression that might otherwise have been given by the advertisement that Telstra was a sponsor of or affiliated with any Olympic body.
144 It is unnecessary to deal separately with the Telstra catalogues, retail point of sale materials and other digital material that the AOC contended conveyed the alleged misleading or deceptive representation, or amounted to misleading or deceptive conduct. Suffice it to say that, for essentially the same reasons as those given earlier in the context of the OIP Act case, none of those materials, read or viewed fairly and in context, conveyed the representation that Telstra was the sponsor of, or was otherwise somehow affiliated or endorsed by any Olympic Committee. Nor would any of these materials have led anyone who read or viewed them to assume that was the case. Telstra did not engage in misleading and deceptive conduct as a result of publishing or disseminating any of the catalogues, retail point of sale or online materials.
145 The only other category of advertisements that need be considered is the Telstra Samsung TVCs. The AOC did not contend that the Telstra Samsung advertisements contravened the OIP Act, presumably because they did not use any protected Olympic expression. The Rio Olympic Games are not expressly referred to in these advertisements. The words "Olympic", "Olympics" and Olympic Games" are not used or employed in any way. The only hint that the advertisements relate in any way to the Rio Olympic Games is the "I Go to Rio" soundtrack. That does not make the advertisement misleading or deceptive, as contended by the AOC. It does not suggest that Telstra has any sponsorship-like arrangement or affiliation with any Olympic body.
146 Like the Rio TVCs, the advertisements do not refer to any Olympic body or use any Olympic emblem or symbol. They do not show images of any member of the Australian Olympic team. The rowers and swimmers depicted in the advertisement are fairly obviously not Olympic athletes. Aside from rowing or swimming, they are depicted viewing sporting events on a mobile phone (presumably a Samsung device). Given the soundtrack, the sporting event they are viewing may be taken to be an Olympic event. The theme or message of the advertisement therefore concerns everyday active Australians watching Olympic events on a Samsung mobile device using the Telstra network. There is nothing to suggest that this means that Telstra has some sort of sponsorship-like arrangement with the Olympics or any Olympic body. It goes without saying that the later iterations of the advertisement containing the disclaimer in prominent script are also not misleading or deceptive in the way contended by the AOC.
147 The AOC contended that the Telstra Samsung advertisement needed to be considered in the context of the fact that Samsung is an Olympic Sponsor licenced by the AOC. It is, however, impossible to see how that fact could somehow render the Telstra Samsung advertisements misleading or deceptive. Even if the Telstra Samsung advertisements are viewed in light of that fact, they do not convey any representation that Telstra (as opposed to Samsung) is an Olympic sponsor licenced by the AOC.
148 It remains to consider the AOC's contention that the advertisements, marketing and promotions - the entire Telstra "Go to Rio" campaign - is misleading or deceptive. This too can be dealt with shortly in light of the findings that have already been made. None of the individual advertisements, marketing or promotions has been found to convey the alleged misleading and deceptive representation. None would have led a reader or viewer within the class of persons likely to read or view them to assume that Telstra had some sponsorship-like arrangement or affiliation with any Olympic body. In all the circumstances, the overall impression or representation conveyed by the campaign in total is no different to the impression or representation conveyed by its parts.
149 There could again be no doubt that Telstra intended to, and may well have succeeded in, capitalising or exploiting, in a marketing sense, the forthcoming Rio Olympic Games. It intended to, and may well have succeeded in, fostering some sort of connection or association between the Rio Olympic Games and the Telstra "brand". It did so, however, by effectively promoting its sponsorship arrangement with Seven in relation to Seven's Olympic broadcast. That included the Olympics on 7 app, and the arrangement with Seven whereby Telstra customers would be offered free premium access to the app. While the earliest version of the Go to Rio advertisements may have been somewhat vague or ambiguous in their representation of Telstra's connection with the Olympic broadcast, ultimately the overall impression or "general thrust" of the campaign was that Telstra customers could get premium access to Seven's app, and thereby get premium access to Seven's coverage of the Rio Olympic Games. That was because Telstra was Seven's broadcast partner.