For ad law watchers, the interesting features of this case were not in the ‘code breached’ decision by Ofcom, but in other aspects, such as the ‘making it up as they went along’ procedure adopted by the communications regulator. We inspect the entrails at
Topic: People in Advertising
Who: David Bedford and The Number/118118
Where: Ofcom
When: January 2004
What happened:
Although the recent Ofcom ruling against TV ads featuring The Number/118118's long-haired runners did not oblige it to do so, the fledgling directory enquiries service says it is considering pulling the characters made famous over nine months and a £16 million multimedia campaign.
It surely can't have been too surprised at the verdict on athlete David Bedford's complaint.
The ITC Advertising Standards Code rule 6.5 is quite strict on "Protection of privacy and exploitation of the individual." It provides that with limited exceptions, none of which applied in this case, "living people must not be portrayed, caricatured or referred to in advertisements without their permission."
In the early stages of the controversy surrounding Bedford's complaint over the advertising, The Number argued that they had based their moustachioed and red socked characters on various other 70s athletes. But there were undoubtedly particular similarities between 1970s photographs of 10,000 metres world record holder David Bedford and the 118118 characters.
The likeness of Bedford which had been caricatured may have been 30 years old, but unfortunately for The Number, rule 6.5 of the Code does not given any dispensation for "comically exaggerated representations" which happen to be out of date.
"Estoppel"
So the Ofcom decision that 6.5 had been breached was not a shock, despite The Number 118118 arguing strongly that, apart from anything else, Bedford had effectively "estopped" himself from pursuing his complaint. The "estoppel" submission had arisen because way back at the beginning of the launch of the 118118 campaign featuring the two scrawny runners, Bedford had happily posed for a photograph, flanked by the two 118118 athletes. The picture appeared in an issue of the Sun in March 2003.
Bedford was quoted in the article: "It’s a bit of fun. Maybe if a dyed my hair black I could get a part too. They are even wearing the type of shorts I used to wear, except I filled mine a bit better."
It was not until six months had gone by and The Number had invested many millions in saturation, national multimedia advertising that Bedford finally raised his complaint. The Number argued that by delaying for this long, having initially indicated that he was perfectly happy with the similarities. Bedford had disqualified himself from crying foul.
But Bedford hadn't even seen the ads when he posed for The Sun, and Ofcom felt that this was insufficient to amount to a representation by words or conduct that Bedford would not complain about the advertisements at all.
No ban
Having said this, the time it took Bedford to make a complaint was one of the factors in Ofcom's decision not to ban The Number from future use of the 118 runners. This delay, the substantial expenditure committed by The Number to advertisements featuring their characters during that period and developing a brand image accordingly, the absence of any clear evidence that The Number set out specifically to caricature Bedford, the lack of evidence that Bedford had suffered actual financial harm as a result of the caricature, and the requirement of the Communications Act 2003 that regulatory activities should be targeted only at cases where action is needed, all persuaded Ofcom against a ban on future TV appearances of the 118118 runners.
Instead, Ofcom felt that any harm suffered by Bedford as a result of the TV advertisements could be sufficiently addressed by publication of the finding that there had been a breach of rule 6.5 and that Bedford had not in fact endorsed the 118118 service.
Why this matters:
As we say, the decision that the Code had been breached here was not in itself surprising, but there were three noteworthy aspects to this case.
Code-busting ads allowed!
First of all, the uncomfortable combination of a finding that the Code has been breached, but that the offending ads can carry on being shown, without time limit, is a decision we fear may come back to haunt Ofcom.
There has to be a danger of this opening the floodgates to arguments in respect of all broadcast campaigns that have been running for any appreciable length of time, that owing to delay on the part of the complainant, the advertising should be allowed to continue even if it breaches the Code.
It may be right that under the Communications Act 2003 regulatory activities should be targeted only at cases where action is needed. We are not so sure, however, that the legislative draftsman intended this to be interpreted so as to allow advertising to continue being broadcast with impunity, even though it has been found by the highest broadcasting authority in the land to breach the relevant Code.
We have heard rumours to the effect that The Number plans to appeal this Ofcom decision. We would counsel more hesitation here, as any appeal, which at this stage would presumably have to be by way of the "judicial review" procedure, could end up backfiring by ending in a return to the more standard line in such cases, namely a ban on future use of the offending advertising.
Ofcom makes it up as it goes along
The second interesting aspect is the procedure by which the Ofcom decision was reached.
For the very first time so far as marketinglaw is aware, a TV advertising regulator's verdict on a complaint under the Code has been reached following, not just written representations, but oral submissions by Counsel as well.
Elsewhere in marketinglaw, we focus on Ofcom's "Interim Guidelines for the handling of standards, complaints and cases in programmes, advertising and sponsorship." Here we will simply note that it was quite unprecedented for Ofcom to decide that The Number's appeal against the "first instance" upholding of Bedford's complaint by the ITC should be heard by way of oral submissions.
But the complaint did fall to be processed at a unique time. It coincided with the hand-over by the ITC to Ofcom of responsibility for regulating TV advertising. The "first instance" decision upholding Bedford's complaint was reached on 23 December 2003 by the ITC. The Number's appeal fell for consideration by Ofcom's new "Content Board."
In this case, the Content Board decided that there should be a further review and that there should be an oral hearing before the Board. Counsel for The Number argued that this should focus on the ITC's decision and its merits, but the Board decided that they should hear the whole thing from the beginning again and accept new submissions and fresh evidence.
Unique the circumstances might have been, but again, this is a development which sets a worrying precedent. Opening the door to the hearing of oral submissions by Counsel as part of a review process could be seen by some as a recipe for the over-legalisation of advertising complaint processing and a scenario which becomes the very opposite of the "light touch" regulation which was always promised as part of the Ofcom package.
Passing off litigation?
The third significant aspect is Bedford's threat to pursue his complaint in the courts. The Content Board made it clear that its conclusions were without prejudice to any private law claim that Bedford may have against The Number and Bedford says he intends to sue for £250,000 damages for passing off. Will such a claim have any chance of success? We doubt it. We believe Bedford would have difficulty on all three of the essential ingredients of a passing off claim, reputation, misrepresentation and damage.
On "reputation", it is true that in the 70s his image was well-known, but can it be said that 30 years on, that image is distinctive of a business being carried on by Bedford? Secondly on "misrepresentation", despite the article in the Sun in March 2003, we believe Bedford will have an up-hill task persuading a Court that the campaign misrepresented The Number's directory enquiries services as endorsed by Bedford. On "damage", it is not going to be helpful to Bedford's case that Ofcom found "no evidence that Bedford has necessarily suffered actual financial harm as a result of the caricature". So we believe all is not set fair for the much vaunted £250,000 claim, but who knows, maybe we will be proved wrong.
