Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
17 June 2010

On the Fifa World Cup by-laws

Two recent events highlight the rather draconian nature of the municipal by-laws adopted by all host cities in order to safeguard the profits that Fifa hopes to make from the Football World Cup in South Africa.

First, news reached me of a women being detained for distributing political pamphlets at the Durban Fifa Fan Fest. Then all hell broke loose when the South African authorities charged two Dutch women with “ambush marketing” over a stunt featuring dozens of fans wearing orange mini-dresses at the Netherlands game. The Dutch women were part of a group who were all wearing bright orange dresses which were sold with packs of Bavaria beer in the Netherlands, allegedly in defiance of FIFA commercial regulations.

Said Dutch Foreign Minister Maxime Verhagen:

It is absurd that the two women have a jail term hanging over their heads for wearing orange dresses in a football stadium. If South Africa or FIFA want to take a company to task for an illegal marketing action, they should start judicial procedures against the company and not against ordinary citizens walking around in orange dresses.

These events highlight the fact that for the duration of the World Cup,  the Municipality of each host city has in effect become the enforcement arm of a private company – Fifa – to protect that private company’s image and profits. The by-laws make clear that “any notices, directives, instructions, regulations, policies or procedures issued by FIFA or the Local Organising Committee (LOC) will be administered and enforced by the Municipality”.

The by-laws prohibit any person from distributing any pamphlets near or in stadiums or fan parks without the prior written approval of the Municipality. A person who nevertheless distributes any pamphlets could be convicted and fined up to R10 000 or six months imprisonment.

This provision seems to impose quite a drastic limit on the freedom of expression of everyone in South Africa. It in effect bans both commercial advertising and any form of political expression in and around the stadiums as well as the fan parks – which are situated on public property. The ban is so broad and all encompassing that I am not sure it will pass constitutional muster.

While limits on freedom of expression may legitimately be imposed to achieve an important purpose like hosting a successful World Cup, I would argue that the ban on all political expression in and around fan parks can only tangentially be connected to this purpose. Because it does not make a clear exception for political expression, it also seems overbroad and hence probably unconstitutional.

Politics should not and does not stop just because 22 men are chasing a ball around a green field in a vast marketing and money making exercise. In fact, as the eyes of the world are on South Africa, social movements and other political players have a unique opportunity to make their voices heard. What better way to do this than to distribute political pamphlets at fan parks?

The by-laws also prohibit any kind of “ambush marketing”. The aim is clearly to protect the commercial interests of Fifa and its sponsors in order to maximize their profits. In the delightful legalise of the by-law, “ambush marketing” is defined as follows:

Ambush Marketing” means marketing, promotional, advertising or public relations activity in words, sound or any other form, directly or indirectly relating to the Competition, and which claims or implies an association with the Competition and/or capitalises or is intended to capitalise on an association with, or gains or is intended to gain a promotional benefit from it to the prejudice of any sponsor of, the Competition, but which is undertaken by a person which has not been granted the right to promote an association with the Competition by FIFA and whose aforesaid activity has not been authorised by FIFA Competition.

This definition is obviously intentionally broad, as it includes any activity aimed at gaining a promotional benefit from the Wold Cup to the prejudice of any sponsor. Whether this broad definition will lead a court to convict the two Dutch women of “ambush marketing” is not so clear though.

The state will have to prove beyond reasonable doubt that the women wore the orange dresses – handed to them for free by the competing beer company – to gain some promotional benefit for the beer company.

If I was the lawyer for the two Dutch women, I would point out that Dutch soccer team plays in orange shirts and that many Dutch soccer fans attend games wearing orange. Surely it would be absurd if the “ambush marketing” ban were interpreted to mean that all Dutch fan were now banned from wearing the colours of the national team at games during he World Cup because a rival beer company is also associated with the colour orange.

The women (and I am sure the rival beer company) will claim that they were merely expressing their patriotic support for their own team and that the dresses were distributed and worn as a sign of support for the national team – not as an attempt to engage in ambush marketing.

In any event, this high handed arrest of the two women has really done exactly the opposite of what was intended as it has given the rival beer company oodles of free publicity. If I was a Dutch soccer fan I would be sure never, ever, again to drink Budweiser Beer. I would make sure to drink Bavaria Beer just to show Fifa and its sponsors what I think of their high-handed tactics.

Hopefully sanity will prevail and the two Dutch women will not be prosecuted. If South African authorities show an eagerness to proceed with the case, it could damage South Africa’s image and would create the impression that we are not the free and democratic country envisaged by our Constitution.

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