EasyJet not Becks’ favourite airline

What happened:

Budget airline EasyJet used a picture of David Beckham in its advertising not once, not twice but three times in the space of just a few weeks.  In no case did it have David's consent.  EasyJet's head of corporate affairs, Toby Nichol, says it's a light hearted campaign which they consider to be no different to the way the tabloid press uses Beckham's image to sell newspapers.  He doesn't believe that anyone would look at the advertising and believe that Beckham was endorsing EasyJet. 

At the time of writing this piece, Beckham's representatives SFX have written to EasyJet about the first ad asking them to stop what they are doing and demanding that the airline make an immediate payment to the NSPCC of £10,000.  EasyJet responded cheekily by saying they would double it to £20,000, but only if David chipped in with £10,000 of his own. 

This surely won't be the end of the story, but what were the ads and what are the issues?

The ads are press.  The first featured David in his special hairstyle for his recent trip to South Africa with the headline "Hair today"…above the picture and "gone tomorrow?" below.  Under that appear various EasyJet destinations and a prominent EasyJet logo.

In the second is in similar format but features  a new picture of Beckham complete with longer hair and the headline "Not sure where to go this Summer, Barcelona? Madrid? Milan? Lowest fares to the hottest cities".

In the third, appears yet another Beckham mugshot, this time with the caption "Keep in touch with Becks! Real low fares to Madrid."

So what are the issues?

Provided copyright clearance was obtained for the use of each photo, there are probably six issues here to look at.

First there is the question of whether the use amounts to an actionable "passing off".  This will be the case if David can establish in a Court three things.  First, that there is good bankable goodwill attached to his image, secondly, that the EasyJet ad(s) amount to a misrepresentation, for instance as to whether he has been paid a fee to appear in the ads, and thirdly that he is likely to sustain serious financial loss as a result of what EasyJet are doing.

Clearly point 1 is a no-brainer and on point 3, if other advertisers used to paying mega sums to David for the right to use his image see that EasyJet can do it scott free, they will be disinclined to do future deals with Britain's most famous man.  Ergo loss

On point 2, however, there is more of a question.  As EasyJet themselves indicate, what person with any sense would imagine that David is being paid to appear in these tacky ads?  However, we can well see a Chancery judge taking the view that there is a serious issue to be tried here and granting an interim injunction to David if he runs along to Court quickly for an order stopping more of this fun and games on the part of EasyJet.  David's lawyers might also boost their claim in this context by throwing in a Human Rights Act "right to privacy" argument.

A separate issue following on from this might be whether, aside from passing off, David might have a self-contained breach of privacy right claim under the Human Rights Act.  However, contrary to recent reports, we have still not reached a point where the Courts have accepted that a free standing "right to privacy" exists for which damages can be awarded.  There was the recent settlement between Radio 1 DJs Sara Cox and her husband Jon Carter and The People newspaper over nude holiday snaps of £50,000 plus costs. But this was an out of court settlement, not a judge's award, so it creates no legal precedent.

Data protection is another issue to be considered.  A picture of David Beckham is as much his personal data as his name and address, and here that data is being processed in a manner that is contrary to the principles of the Data Protection Act 1998.  There has yet been no case where an individual has successfully obtained an interim injunction preventing further processing of their data in a manner contrary to the 1998 Act, but there has to be a first time for everything. 

Defamation is another area to think about.  David might argue with some force that for him to be associated with a budget airline like EasyJet is lowering to his reputation and thus defamatory.

Then there is the CAP Code of Advertising, Sales Promotion and Direct Marketing.  The Advertising Standards Authority, which enforces the Code, cannot order advertisers to pay damages, but a complaint upheld finding would make it very difficult for EasyJet to get the press to carry more ads of this kind

The "protection of privacy" part of the Code requires that marketers should not "unfairly portray or refer to people in an adverse or offensive way" and urges marketers to obtain written permission before referring to people with a public profile.  Having said this, however, it indicates that prior permission may not be needed when the marketing communication contains nothing that is inconsistent with the position or views of the person featured.  Some might think that the further prohibition on showing members of the Royal Family applies here, but not quite yet. 

EasyJet might argue strongly that the use of David's image is in each case quite "consistent" with the position David occupied at the relevant time, for instance in relation to his trip to South Africa and in the second instance regarding speculation over his future football club.  However, on balance our strong feeling is that the ASA would find in favour of David. 

Finally, there is  trademark infringement, but although DAVID BECKHAM might well be a registered trademark, David's name does not feature in the EasyJet advertising.  Some sports personalities have endeavoured to register their face as a trademark, but to date this has invariably encountered difficulties with the registering authorities and there is no sign that David has been successful here where others have failed.

Why this matters:

EasyJet's campaign has provided them with wonderful copy and coverage, but there can be little doubt that David will not tolerate much more.  EasyJet's "tabloid" point is not completely unreasonable, but cases like this can only give greater impetus towards the creation, by the courts or parliament, of a freestanding legal right of privacy, which will ultimately disadvantage all UK advertisers.