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.
CAP’s understanding is that the UK does not have statutory privacy or personality laws but the European Convention on Human Rights states that everyone has the right to respect for his or her private and family life, home and correspondence. Marketers are probably best advised to take legal advice before making unauthorised use of individuals and their possessions. 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 referring to or portraying members of the public or their identifiable possessions (Rule 6.1 – see Privacy: Permission).
Using crowd scenes or general public locations may be acceptable without permission (Rule 6.1). But the ASA could well uphold complaints from members of the public who have been featured in a significant role without their written permission, especially if that individual has been caused distress.
Prior permission might not be needed if the marketing communication contains nothing that is inconsistent with the position or views of the featured person (Rule 6.1) and this section of the Code is most likely applicable to people in the public eye. The ASA once upheld a complaint about the use of a reference to an individual because it misrepresented his views on a proposed housing development (John Collins, 2 April 2014)
Marketers should take care not to imply the individual featured personally approves or endorses the advertised product if he or she does not, and should be aware that those who do not want to be associated with the advertised product could have a legal claim (Rule 6.1). In 2014, the ASA upheld a complaint where the advertiser had used photographs of the complainant’s property without permission. The ASA ruled that, as the photographs featured in an area of the website called ‘Case Studies’, it implied the complainant had given permission for their use, when this was not the case (Hansen.co.uk Ltd, 16 April 2014).
References to anyone who is dead must be handled with particular care to avoid causing offence or distress (Rule 4.3) and it is advisable to seek legal advice about whether statutory law protects the use of iconic images or sections of speeches. Examples of the former could include the well-known visual of Audrey Hepburn and her cigarette holder or Marilyn Monroe in her white dress standing over the subway vent. Examples of the latter could include speeches by Winston Churchill or Martin Luther King.
The CAP Code has specific requirements for marketing communications that feature the Royal Arms and Emblems, Royal Warrants or the Royal Family (Rules 3.52 and 6.2). Generally, none should be featured without permission (see Royal Family).
See entry on ‘Data Protection and Privacy’, ‘Privacy: Landmarks and Property, ‘Privacy: Permission’, 'Privacy: Offence & Adverse Portrayal', ‘Privacy: Use of Impersonators & Caricatures’ and ‘Privacy: Implied Endorsement’