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.
The Code goes no further than urging marketers to obtain written permission before referring to or portraying members of the public or their identifiable possessions. Although it receives relatively few complaints about the protection of privacy, the ASA has, on occasion, interpreted the rules robustly.
The ASA has ruled against the use of photographs and names of members of the public who have not given their permission to be used (Stephen Norton, 11 April 2007, and Barlow Lyde and Gilbert, 20 September 2006). One advertiser not only used the photograph of a woman without her consent but also misleadingly implied she had used the product (Phyto Nature Source, 25 October 2006). The advertiser used the woman’s image in a “before” photograph but not in the “after” photograph and implied the change was caused by using the product.
The ASA has considered a complaint about the use of a list that included the names of dead artists. The ASA rejected the complaint because permission had been given either by the performers before they died or by their estate (Phonographic Performances Ltd, 14 March 2007).
If an individual’s identifiable possessions are the sole or main focus of an ad, the ASA has upheld complaints (Quentin Marks, 26 May 2004). If they have been doctored, are general or are unlikely to be recognised by many, marketers may not need to seek permission (Colt Car Company Ltd, 23 April 2008).
Members of the Royal Family should not normally be shown or mentioned in marcoms without their prior permission (see ‘Privacy: Royal Family and M Llewellyn, 30 November 2005). The Code urges marketers to get permission before featuring people with a public profile but the ASA might be lenient in the absence of offence, adverse portrayal or implied endorsements. References that accurately reflect the content of books, articles or films are usually acceptable without permission (Rule 6.1).
Some years ago, solicitors for Robbie Williams objected to an ad that featured the headline “See Robbie Live” and included a large photograph of him. The ASA considered that the prize promotion, which offered the possibility of seeing Robbie Williams in concert, neither implied his endorsement nor was likely to affect his negotiation of genuine endorsements. It therefore considered permission was not necessary (Mars Confectionary, March 2000).
Marketing communications that treat those in the public eye humorously and without undue malice might be acceptable even if marketers have not obtained permission. An ad for toothpaste that showed Tony Blair shaking hands with George W Bush and was headlined “Bush and Blair agree on defence policy” was considered not worthy of investigation because the ad included nothing that was inconsistent with the policies of those featured and portrayed neither politician in an adverse or offensive way. Conversely, an ad that featured the headline “I think we should bury this news on Page 3” and a drawing of Stephen Byers, the former Transport Secretary was upheld. The advertiser had not sought permission from Stephen Byers and unfairly attributed the statement to him whereas it was stated by his special adviser, Jo Moore (Daihatsu Vehicle Distributors Ltd, 10 April 2002). Similarly, the ASA decided against a poster that featured a photograph of Sir John Stevens, the Commissioner of the Metropolitan Police alongside misleading statistics about the number of rapes and sexual assaults that took place in unlicensed minicabs (Licensed Taxi Drivers Association, 24 September 2003 (complaint 3)).
Of course, marketers should not contact members of the public if they do not have permission to do so. For example, the ASA upheld a complaint against a marketer that sent an SMS text message to someone from whom it had not obtained explicit consent (World Networks, 14 February 2007). See ‘Database Practice: Consent’.
Marketers might want to seek legal advice if they have concerns about using the names, images or possessions of individuals.
Last modified : 03 August 2010