It’s typical, you wait for 522 years then two come along at once. Yes in one week the ASA recently pronounced judgment in not one but two separate cases in which beefeaters appeared in ads without so much as a Yeoman by your leave. Veena Srinivasan reports.
Topic: Misleading advertising
Who: Historic Royal Palaces, the ASA, Norwich Union and Aer Lingus
When: July 2007
Law stated as at: 29 August 2007
To the evident annoyance of Historic Royal Palaces (HRP), both Norwich Union Direct (NU) and Aer Lingus included images of a Yeoman Warder in front of Tower Bridge in their press ads.
The image used by Aer Lingus was of a Yeoman Warder, in a green "Irish" hat and royal military uniform. The regional press ad promoted flights from Heathrow to Dublin, Cork and Shannon and contained the tag line:
"Someone's had a great time in Dublin"
Norwich Union Direct
The NU national press ad also featured a Yeoman Warder in military uniform, with the following text:
"If you lose your keys, we'll pay for your locks to be replaced…"
We understand that NU's agency approached Historic Royal Palaces and requested permission to use the image in the ad. Permission was refused.
Historic Royal Palaces
HRP complained to the ASA about both advertisements on the basis that the images used misleadingly implied that the Tower of London and its Yeoman Warders endorsed the advertisers' products.
HRP have a Memorandum of Understanding with the Royal Household, under which HRP are obliged not to endorse commercial products or services.
It transpired that in both cases:
a) the image of the Yeoman Warder had been obtained from Getty Images;
b) the advertisers had Getty Images' consent to use the relevant image; and
c) the image was of an actor representing a Yeoman Warder.
The ASA acknowledged all three of a), b) and c) above. In the case of Aer Lingus, it held that the Yeoman Warder in the image was likely to be seen as a way of representing Aer Lingus flights from London to Ireland. Similarly in the context of the NU ad, the ASA held that the image would likely be seen as an illustration of the lock and key message. The ASA did not think that the public would infer that images were of a real Yeoman Warder.
The ASA did not uphold either of the complaints and held that no further action was necessary.
"[..] we considered that readers were unlikely to interpret the ad in that way and therefore were unlikely to be misled."
Why this matters:
Section 62 of the Copyright, Designs and Patents Act 1988 provides that in respect of buildings, sculptures, models for buildings and works of artistic craftsmanship, which are permanently situated in a public place or in premises open to the public, copyright is not infringed by making a photograph or film of the copyright work. However, some images of public structures have been trademarked, such as Blenheim Palace.
Therefore, the issue here was inclusion of the Yeoman Warder. It appears to be points a), c) and b) above that saved the advertisers in these instances. If a photo of an actual Yeoman Warder, taken during one of his shifts, had been used, the story may well have been different.
By contrast, using the image of a member of the royal family in advertising is more risky, even where the advertising does not imply a Royal endorsement.
The advertising code produced by the Committee of Advertising Practice (CAP Code) includes the general rule that:
- marketers should not unfairly portray or refer to people in an adverse or offensive way; and
- marketers are urged to obtain written permission before referring to people with a public profile.
In addition, the CAP Code contains the following specific rule regarding the portrayal of Royal Family in advertising:
- Members of the Royal Family should not normally be shown or mentioned in marketing communications without their prior permission.
You will note that this is not a complete restriction but merely provides that the Royal Family should not "normally" be included in advertising. On some occasions, where the advertising in humorous, the Advertising Standards Authority (ASA) may decide that the ads are acceptable (e.g. Cadburys Schweppes' campaign using look-alikes of members of the Royal Family). However, when Ryan Air attempted to use the image of Prince Charles in a humorous way, although it was considered that the ad was unlikely to cause offence, the ASA upheld the complaint that the advertisement was irreverent and offensive to Prince Charles. In this case, 19 members of the public had complained to the ASA.
In addition, the Royal Family does not tend to have a sense of humour about the use of their image in advertising. You may recall Eurostar's use of Prince Charles (his head was superimposed onto the body of an athlete) in a Eurostar campaign. A Palace official issued the following official statement:
"I am afraid we don't think it is funny. […] The Royal Family never endorses commercial products."