A security guard was unhappy to see his picture in a leaflet advertising his former employer’s services. He complained to the Advertising Standards Authority, but was his consent needed given that when pictured, he was employed to provide the services being advertised? Anna Williams (née Montes) reports.
Topic: People in advertising
Who: Advertising Standards Authority
When: 30 September 2009
Where: United Kingdom
Law stated as at: 30 October 2009
What happened:
J&S Security Limited ("JAS") found its recent print campaign promoting its security services scrutinised by the Advertising Standards Authority (ASA). A photograph of one of its ex-employees wearing his fluorescent jacket appeared in a leaflet created by the company.
The leaflet also featured the text: "Fully uniformed guards, all guards are S.I.A Licensed … S.I.A Licensed Guards".
The ASA investigated because the individual depicted within the leaflet filed a complaint on two counts – that his image has been used without his consent (he had believed the photograph concerned was taken for an identity card rather than for use in advertising) and that the advertising was misleading as it stated that all JAS guards were licensed by the S.I.A. which he did not believe was the case.
Following its usual procedures, the ASA provided J&S with an opportunity to comment on the complaints received. J&S did not provide written submissions to the ASA but during a telephone conversation they argued that they had indeed obtained the complainant's consent to the use of his image in the ad, albeit that consent had been obtained verbally rather than in writing. On the point of SIA licensing and the ad being potentially misleading, J&S verbally confirmed that all its guards were indeed licensed by the S.I.A as claimed within the advertising materials.
The ASA verdict
J&S's responses were not sufficient for the ASA. It decided to uphold the two complaints.
The fact that J&S claimed they had obtained the complainant's verbal consent to the use of his image was not enough as written consent had not been obtained before the leaflet was distributed. For this reason, the use of the complainant's image constituted a breach of the CAP Code. Where the issue of the licensing of J&S's guards was concerned, while noting the company's verbal comments in relation to the complaint, the ASA was not satisfied enough evidence had been provided to demonstrate all guards were indeed S.I.A. licensed as was claimed. As there was an absence of sufficient substantiation for such a claim, the ASA ruled that the claim was indeed likely to mislead and so the complaint was upheld and J&S could not continue to publish the ad in its current form.
Why this matters:
This case serves as a good reminder to advertisers that they must hold documentary evidence to prove all claims that are capable of objective substantiation made within a piece of advertising (regardless of whether the claims made are direct or can be implied). Such substantiation should be gathered prior to an ad being distributed in any way.
In this case, J&S should have been able to adduce written evidence to the ASA of the fact that its security guards were indeed licensed by the SIA as promoted within the leaflet, such as through the provision of certificates or other documentation verifying this fact.
More importantly perhaps, this case acts as a reminder to advertisers of the steps they need to take before using an image of an individual in advertising materials. Unlike the position in the USA, in the UK legal "personality rights" as such do not exist.
Grounds on which an individual can claim over use of his/her image in advertising
Copyright will not protect an individual's appearance or features but individuals can prevent publication of a photograph of themselves in certain circumstances, including if:
1. the photograph was commissioned by them for private and domestic purposes;
2. the publication is in breach of confidence;
3. the photograph (with or without accompanying text or a caption) is defamatory; or
4. assuming the individual has a public profile, the use of the personality amounts to "passing off" in some way.
Advertisers must also remember the provisions of the CAP Code when considering including images of people within their advertising materials.
What does CAP Code "urges" wording mean?
As well as requiring that advertisers do not unfairly portray or refer to people in an advertisement in an adverse or offensive way, the CAP Code "urges" marketers to obtain written permission before referring to or portraying members of the public or their identifiable possessions.
The language of section 13.1(a) of the CAP Code uses the word "urges" where this obligation is concerned, rather than any stronger language such as "shall" or "must," but to obtain written consent is certainly best practice and particularly in light of growing privacy concerns generally, this verdict suggests that advertisers should now regard getting written consent as a standard requirement.
Anna Williams (née Montes)
Senior Associate
Osborne Clarke, London
anna.williams@osborneclarke.com
