The Mail on Sunday advert showed a picture of Charles and Diana
Ingram under the headline, "Need a cheap getaway?"
Beneath the photo were the words: "(No Major fraud required!)
Lowest fares to the sun..."
The Ingrams complained that the photograph had been used without
their permission and was an invasion of their privacy. They also
complained that the ad was offensive and distressing.
The ASA did not agree, stating that while the advertising codes
encouraged advertisers to obtain written permission before
"referring to or portraying individuals in advertisements," they
did not have to. In the opinion of the Authority, there was no
breach of privacy.
While the Authority accepted that the advert had offended and
distressed the Ingrams, the ASA wrote that "the advertisement had
not unfairly portrayed them adversely or offensively and was
consistent with the general media depiction of them".
What else could the Ingrams
do?
It's possible that the Ingrams could make a claim under the Data
Protection Act.
The photograph that was used was taken, presumably, for
journalistic purposes as the couple left the court. The photograph
constitutes 'personal data' under the Act but newspapers have a
right to 'process' that data – i.e. publish the photos – for
journalistic purposes in, e.g. a story about their court
defeat.
For easyJet to use the photo for advertising, the Ingrams could
potentially argue that their personal data has been processed in an
unlawful manner. A key test is whether it can be shown that
easyJet's action prejudiced the rights and freedoms of the
Ingrams.
Protecting celebrity rights
Otherwise, protecting the image of a celebrity can be difficult
in the UK. In fact, the closest the UK courts have come to
recognising a "celebrity right" is Eddie Irvine's success against
talkSPORT in the High Court in March 2002. It simply recognised the
commercial value of personal endorsements.
A promotional brochure had been sent to less than 1,000 people
advertising Talk Radio with a photo which had been doctored to show
Irvine holding a radio bearing a Talk Radio logo, instead of a
mobile phone, which he was holding in the original photo.
The judge confirmed that the courts cannot be asked to uphold
anyone's exclusive rights to merchandise their celebrity; but
Talksport's mistake was to run a campaign that unfairly exploited
someone's commercial goodwill by implying a connection that did not
exist.
More recently, Michael Douglas and Catherine Zeta Jones, in a
dispute over the publication of unauthorised photos of their
wedding, argued that the UK has a law of privacy by way of the
Convention on Human Rights and the Human Rights Act coupled with
decisions of the European Court of Human Rights. But the judge
disagreed, albeit expressing his sympathy.
France, Germany, Italy, Holland and Australia recognise
publicity rights for celebrities, as do some US states. For
example, in 1999, Dustin Hoffman was awarded $3 million in damages
after a magazine published a computer image of his head and face
superimposed on the body of a woman in a dress and high heels. The
court ruled that Hoffman was "Robbed of his dignity,
professionalism and talent and violated by technology."
See the
ASA's ruling.
