Naomi won’t now get her £3,500 for breaches of confidences and data protection law, but does it change the position for marketers using people in advertising?
Topic: Data protection
Who: Naomi Campbell and The Daily Mirror
Where: The High Court of Justice, London
When: October 2002
What happened:
The Court of Appeal overturned the earlier Judgment of Morland J in the case of Naomi Campbell –v- Daily Mirror. The Morland Judgment awarded Naomi £3,500 in damages for breach of confidence and breach of the Data Protection Act in revealing sensitive personal information about her. The "personal information" in question related to her attendance at meetings of Narcotics Anonymous.
We reported the Morland J Judgment on marketing.law.co.uk as a "wake-up call" for marketers. We said that it underlined the risk that the unauthorised use of individuals in advertising material could give rise to proceedings and damages awards under data protection legislation. Now, the Court of Appeal has overturned the Morland J Judgment, taking the view that The Daily Mirror was entitled to take advantage of a public interest exemption in the Data Protection Act 1998. As a result Naomi faces a legal bill estimated at around £750,000.
Why this matters:
Or not as the case may be, because for marketers we do not believe this decision in any way reduces the data protection risks when it comes to using real people in advertising.
The "public interest" exemption which got the Morland J decision overturned applies to journalism, not marketing, and the basic legal position remains the same. This is that the use of the likeness of an individual in advertising is "processing personal data" and is therefore caught by the Data Protection Act 1998. The effect of this is that publication of the advertising without the individual's prior consent could potentially give rise to proceedings for distress caused by illegal data processing, as well as the other possible legal dangers which advertisers have long since faced when using people in advertising without their permission. By this we mean possible actions for passing off or defamation for example.
Another point to mention here is that advertising agencies and brand owners should ensure that their "notification" with the Information Commission (the means by which they fulfil their legal obligation to inform the data protection watchdog of their data processing activities) covers the use of personal data by way of the inclusion of that data in advertising material for publication. If this is not included in the notification then, regardless of whether the individuals concerned have given their prior consent, the use could still give rise to enforcement proceedings under data protection legislation.
