We are slowly emerging from lockdown and the cabin fever is abating. We can leave our homes now, but can only lumber our lonely way about, hoping not to crash into a pole when our glasses fog up from wearing a mask. And we can never, ever, exercise with anyone else. Athletic competition in groups or contact sports is naturally out of the question. Or is it?
If we can’t compete with other people in the flesh, we can do so virtually, and that is where “virtual events” come in. The idea is that rather than gather competitors together at the same place and the same time to compete in a certain event, you do away with the “where” but keep the “what” and the “when”. You use technology to make this possible, and a virtual event is born.
For example, in the case of a marathon, you know the “what” (run for 42-odd km) and you can select a “when” – a certain date at a certain time. The participants enter electronically – via a website or through a dedicated mobile app are the usual methods. All participants then start at the same time and the app tracks their progress as they complete a marathon distance, tracked by the app. The organisers may choose to have progress available in real time for anyone to see.
Another variation to this is where there is no set date and time for the event either, but competitors can complete the event in their own time.
Note that I will not be dealing with virtual sports betting, which is another and very interesting topic.
The “Normal” Position
How is a virtual event different from a “real” event?
The main difference legally is that in the case of an event where people compete together, you have to comply with the South African legislation dealing with events – the Safety at Sports and Recreational Events Act (2 of 2010). This does not apply where the event is virtual. The reason for this is that the Act applies only to “events”, which are defined as “sporting, entertainment, recreational, religious, cultural, exhibitional, organisational or similar activities hosted at a stadium, venue or along a route or within their respective precincts;”.
As the Act’s requirements are somewhat burdensome, this is a relief, but if you organise a virtual event you still have to prepare properly.
Rules of the Event
Firstly, your event needs rules. These still deal with many of the same aspects as a “real” event, including eligibility to compete, cut-off times, qualifying events and so forth. You may want to deal with the wearing of race numbers for example, which is a nice touch even if there is theoretically no-one to see them unless posted on social media.
It must be clear that the event is not taking place at a particular place, and that the participants must not congregate on the day to complete the event together. If they do this, then you may be in danger of holding an “event” and you could fall under the provisions of the Act, which you are not prepared for. You may also fall foul of the local authority. This is particularly important where the virtual event has replaced a “live” event that is historically held over a particular route.
As the event organisers are not in control of the course or the route and are unable to ensure proper road closures, it must be made clear to participants competing in this virtual event that they need to comply with the relevant traffic and road rules of whichever route they decide to take as the risk of their safety is now in their own hands alone.
If the event takes place during a COVID lockdown period, the participants must undertake to follow the COVID control regulations in place in their jurisdiction at the time that the event is held, and to generally follow social distancing best practice when completing the event.
As the event depends on use of a mobile app, participants must be reminded that they must have the app downloaded, and that they must carry their smartphones with them during the event. Smartwatches could theoretically be used instead of smartphones, but only if they have the capacity to connect to networks independently, otherwise live tracking of participants would not be possible.
As entries will take place electronically, you will need the usual set of terms dealing with payment, consumer issues and so forth, which will be largely the same as those used for a conventional event entered online. However, pay attention to the following issues in particular.
Participants’ progress will be tracked in real-time. The effect of this is that their personal information (including live location) will be shared with the general public on a minute-to-minute basis. It is very important to get the privacy issues around this aspect correct, otherwise you may fall foul of privacy legislation. While the South African Protection of Personal Information Act (4 of 2013) (POPIA) has not yet been fully commenced, it is wise to treat it as though it were, as doing so will save you the trouble of ensuring compliance later. Moreover, many participants may be resident in other jurisdictions, especially if they don’t need to travel to South Africa to participate. These participants will actually be completing the event in a foreign jurisdiction and will be subject to foreign privacy law. While enforcement of that law in South Africa may be difficult, it is always best to avoid complications if possible. Participants resident in the EU will be subject to the GDPR which has its own quite strict requirements.
For “live” events, event organisers must be careful to limit their liability for injuries sustained by participants. Participants should acknowledge that the event may have certain inherent hazards and accept liability insofar as this is legally possible. In the case of virtual events, the organisers are not responsible for the venue or course, and so it would be difficult to hold them liable should a participant fall down a manhole. Nonetheless it is better to be safe than sorry and the proper limitations of liability should remain in place.
End User Licence Agreement (EULA)
Finally, mobile apps will generally be made available for download from the app stores – both the Apple App Store and the Google Play Store. Each of these has its own requirements for EULAs, which must be accepted by participants as a condition for downloading and installing them. In the case of the Apple App Store, if you do not provide a EULA with certain required terms, the store will automatically impose one on you, which will see to Apple’s interests but not yours. Amongst other things, it is particularly important that the EULA deals with reserving your intellectual property in the app itself, as well as dealing with the privacy issues arising from use of the app.