Tom Hickman: Freedom of expression and the Olympics

One may question whether “the practice of sport is a human right”, as stated in the Olympic Charter. But it cannot be doubted that it is not as important as the right of freedom of expression, which is regarded as fundamental to democracy.

Yet this right seems often to be trammeled in the name of the Olympics.

At the Beijing Olympics demonstrations were prohibited save with a permit in three “demonstration areas”. In fact, would-be demonstrators were deterred from applying and those that did were not granted permits anyway. The Chinese authorities were scorned and mocked around the world.

But in the run up to the London Games questions must be asked about whether freedom of expression is being respected here.

The London Olympic and Paralympic Games Act 2006 prohibits businesses from any promotion linked to the games. It would catch, for example, a bed and breakfast offering a discount on rooms to anyone attending the games, or a pub that gets in a big screen to show the Games and publicises the fact on a sign outside.

Businesses are on very risky ground if they make any use of a combination of any two of the protected words “Games”, “2012” or “twenty twelve”, or combination including other secondary protected words, including “gold”, “London” or even “summer”.

Furthermore, commercial use of the words “Olympics”, “Olympian”, “Para-Olympics” (etc.) is effectively banned by the Olympic Symbol etc. (protection) Act 1995.

The result was highlighted by the Newham Recorder in an article that received coverage on Have I Got News for You, that a local greasy spoon called Café Olympic had been forced to paint over the “O” on its shop sign.

Such prohibitions appear to go clearly beyond the justification that Locog itself advances for them: protecting the official sponsors—who fund the Games—from unofficial competition.

It is doubtful that a reasonable person would consider Café Olympic to be an official sponsor of the Games, and it is unfortunate that commercial participation in the cultural experience of the Games is being sterilized. It may significantly reduce the cultural footprint left by the Games on the city of London if local shops and enterprises cannot refer to it.

Last week newspapers were reporting that the quango responsible for enforcement of the Act, Locog, would also be cracking down on Facebook and Youtube postings during the games.

The invasion of freedom of expression also ratcheted up last week with the service of the first Olympic ASBO.

It followed the efforts of three protesters to prevent the erection of a temporary basketball court by the Olympic Delivery Authority on Leyton Marsh in Hackney. The protesters claimed that workmen were unlawfully digging through topsoil into the protected marsh. They were convicted in the Magistrates Court for breach of the Public Order Act and upon refusing to pay a  £200 fine were imprisoned for five days. Upon leaving prison, one of the three, Mr Simon Moore, was served with what has been reported as an “Olympic ASBO”.

The ASBO reportedly makes it a criminal offence for Mr Moore to enter within 100 yards of any Olympic competition or practice venue or within 100 yards of any road being used for Olympic activities.

The ASBO also prevents Mr Moore from trespassing on any building or land, taking part in “any activity that disrupts the intended” activities at the Olympics or (for good measure) at any Diamond Jubilee celebrations, or which “obstructs” the passage of any Olympic participant (including officials and spectators) at any time.

The use of ASBOs to prevent individuals engaging in offensive and valueless anti-social conduct is one thing. But their use to impose prior restrains on the genuine exercise of freedom or expression, as well as the exercise of other rights such ordinary use of the highway or attending an event for which one has tickets, is much more questionable and goes beyond the (already questionable) current authority on the use of such powers: Singh [2006] EWCA Civ 1118.

Even accepting that the detailed facts have not been reported, it is difficult to conceive how a protest against the digging up of protected marshland could justify prior-restraints on association and expression in other contexts.

That this has been done in the name of the Olympic games—and indirectly at least the ‘human right’ to engage in sport—is a regrettable further manifestation of the tension between the Olympics and one of the the most venerated democratic rights.

 Tom Hickman is a barrister in Blackstone Chambers.

A shorter version of this blog was published in The Lawyer on 30 April 2012.