When picture agency First News licensed out to the nationals an aerial shot of Beckingham Palace, it reckoned without the Beckhams’ lawyers and the Human Rights Act. But did they really have a case and what would be the position in an ad?
David and Victoria Beckham and First News
Solicitors for David and Victoria Beckham wrote to picture agency First News threatening proceedings for a breach of article 8 of the Human Rights Act.
The threats arose out of First News' syndication to various national newspapers of aerial photographs taken of the Beckhams' home.
The star feature of the photograph was an under construction £120,000 playground which, it turned out, did not at that time have planning permission.
By the time the photographs had appeared in nationals such as the News of the World and the Daily Mail, the local authority had confirmed that the works had no planning permission and that the Beckhams had been asked to discontinue construction and apply for retrospective permission.
On receipt of the solicitors' letter, First News removed the offending photograph from its website. It is not known whether further action has been taken by the Beckhams or whether they have carried out that threat to issue proceedings under the Human Rights Act.
Why this matters:
The Human Rights Act enshrines into UK law the European Convention of Human Rights. Article 8 of that convention preserves and we paraphrase, a Right to Privacy and Family Life.
The legislation requires that any new laws introduced into the UK as well as any verdict of a court or tribunal, must be reached in a manner which is consistent with the Human Rights Act ("HR Act"). The statute does not, however, of itself create a right to recover damages or other relief in respect of a breach of the Human Rights Convention per se.
Since the HR Act has come into force in the UK, there have been attempts to recover damages and other relief on the basis of a breach of the convention alone, but none of these have so far been successful. In the light of this, it is unlikely that even if the Beckhams had carried out their threat, they would have necessarily succeeded in the courts.
What if Beckingham Palace had appeared in an ad?
In an advertising context, the CAP code, covering non-broadcast advertising, "urges" marketers to obtain written permission before referring to members of the public or their identifiable possessions.
The TV and radio ad code does not refer specifically to individuals' identifiable possessions. It merely states that living people must not be portrayed, caricatured or referred to in advertisements without their permission.
Since it is difficult to imagine the use of a photograph of this kind could be made in advertising without some direct or indirect reference to the Beckhams, it seems likely that it would have encountered Code problems in whatever medium it appeared. There might have also been legal issues, but probably more from the direction of our law of passing off than from human rights legislation.