Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
CAP’s understanding is that the UK does not have statutory privacy or personality laws but the European Convention on Human Rights states that everyone has the right to respect for his or her private and family life, home and correspondence. Marketers are probably best advised to take legal advice before making unauthorised use of individuals and their possessions. Marketers must not unfairly portray or refer to anyone in an adverse or offensive way unless that person has given the marketer written permission to allow it. Marketers are urged to obtain written permission referring to or portraying members of the public or their identifiable possessions (Rule 6.1).
Using crowd scenes or general public locations can be acceptable without permission (Rule 6.1). A woman objected that she appeared without permission in a crowd scene in an ad for New Look Group. Because the visual was taken in Oxford Street in London, a busy shopping area, the ASA did not object to the inclusion of the complainant. But the ASA could well uphold complaints from members of the public who have been featured without their written permission, especially if that individual has been caused distress.
Prior permission might not be needed if the marketing communication contains nothing that is inconsistent with the position or views of the featured person (Rule 6.1) and this section of the Code is most likely applicable to people in the public eye. A brochure for an animal welfare pressure group included a quote from an eminent professor. The complaint, that the quote had been used out of context and was therefore misleading, was upheld. But the ASA could just have easily adjudicated that the quote was inconsistent with the professor’s well-known opinions and that the advertiser had not obtained permission before quoting him (Speak Campaign, 21 June 2006).
Marketers should take care not to imply the individual featured personally approves or endorses the advertised product if he or she does not and should be aware that those who do not want to be associated with the advertised product could have a legal claim (Rule 6.1). A national press ad for a company offering litigation services included the headline “If you'd like your name kept out of the legal pages, take a note of ours" and featured an extensive list of names of legal counsels and the companies for which they worked. The ASA considered that the company should have obtained prior permission from those named in the ad, because the ad could be seen by some readers as a list of people who were involved in litigation and had benefited from the company’s services (Barlow Lyde and Gilbert, 20 September 2006).
References to anyone who is dead must be handled with particular care to avoid causing offence or distress (Rule 4.3) and it is advisable to seek legal advice about whether statutory law protects the use of iconic images or sections of speeches. Examples of the former could include the well-known visual of Audrey Hepburn and her cigarette holder or Marilyn Monroe in her white dress standing over the subway vent. Examples of the latter could include speeches by Winston Churchill or Martin Luther King.
The CAP Code has specific requirements for marketing communications that feature the Royal Arms and Emblems, Royal Warrants or the Royal Family (Rules 3.52 and 6.2). Generally, none should be featured without permission,
Finally, marketers should be careful not to infringe members of the public’s privacy by revealing information (true or otherwise) about that individual. For example, the ASA upheld complaints about a mailing, delivered in a clear plastic wrapper, that implied the recipient had won £50,000. The ASA concluded that the presentation of the mailing could invade the recipient’s privacy (Redcats (Brands) Ltd, 27 July 2005.
See entry on ‘Legality: Data Protection and Privacy’ and other entries on ‘Privacy’.
Last modified : 03 August 2010