Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
The CAP Code contains rules on privacy and the right of individuals not to appear in marketing communications against their wishes. If an ad implies that a person has endorsed a product, without that person’s permission, this could constitute a breach of the Code.
What the rules say
Whenever the ASA assesses a complaint about an ad that implies a person has endorsed a product, the following rule in Section 6 of the Code is likely to apply:
6.1 Marketers must not unfairly portray or refer to anyone in an adverse or offensive way unless that person has given the marketer written permission to allow it. Marketers are urged to obtain written permission before:
• referring to or portraying a member of the public or his or her identifiable possessions; the use of a crowd scene or a general public location may be acceptable without permission
• referring to a person with a public profile; references that accurately reflect the contents of a book, an article or a film might be acceptable without permission
• implying any personal approval of the advertised product; marketers should recognise that those who do not want to be associated with the product could have a legal claim.
Prior permission might not be needed if the marketing communication contains nothing that is inconsistent with the position or views of the featured person.
Permission
A general requirement stated in this rule is that advertisers should obtain written permission from people before portraying them or referring to them – in any way – in ads. More specifically, it states that they should obtain permission before implying that someone personally approves of or endorses the product being advertised. This applies whether the person in the ad is a member of the public or someone with a public profile.
For example, if former customers of a photography company found that images of them or their event were being used in ads for the company, they might complain to the ASA that this implied they personally endorsed the company. If this was not the case, and if the advertisers had not sought their permission before using these images in the ad, this could potentially mean that the ad breached the Code.
Identifiable possessions
The same principle applies to ads that feature a person’s identifiable possessions. For example, individuals whose home is identifiable in ads for a company that carried out work on the property might not wish to be seen as endorsing the advertisers. If permission had not been sought from them in advance, the ad would risk breaching the Code.
Positions and views
Code rule 6.1 states one potential exemption to this requirement:
Prior permission might not be needed if the marketing communication contains nothing that is inconsistent with the position or views of the featured person.
In practice, this means that if the implied endorsement in the ad is consistent with views that have been stated by the person portrayed in the ad (e.g. if they have expressed positive views about the advertised product), then the advertisers might not need to seek their permission before referring to those views in the ad.
To date, this exemption has rarely been applied in ASA rulings. It could potentially apply to cases where a person with a public profile has expressed something positive about a brand (e.g. in an interview), and an ad for the brand refers to this positive statement as an implied endorsement. There are no formal ASA rulings to establish whether this exemption from seeking permission applies to statements made by members of the public, though it is more likely to apply if such statements have been made publicly rather than in private correspondence. In either event, members of the public may still wish not to be associated with a brand, and so advertisers should still seek permission if those members of the public would be identifiable from the ad.
A related point is covered in our guidance on testimonials and endorsements.
Legal claims
Though the ASA does not enforce legislation or act on legal claims, Code rule 6.1 emphasises that individuals may have a valid legal claim if advertisers don’t obtain their permission before implying that they endorse a product or service.
Advertisers should therefore familiarise themselves with relevant privacy laws, or seek legal counsel, before implying that anyone endorses their products.