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 Code goes no further than urging marketers to obtain written permission before referring to or portraying members of the public or their identifiable possessions (rule 6.1). Although it receives relatively few complaints about the protection of privacy, the ASA has, on occasion, interpreted the rules stringently.
The ASA has, in the past, ruled against the use of photographs and names of members of the public who have not given their permission to be used. In 2011, the ASA upheld a complaint by a woman whose picture was used in a wrinkle-reduction ad without permission (Radialabsdirect.net, 20 July 2011). One advertiser not only used the photograph of a woman without her consent but also misleadingly implied she had used the product (Phyto Nature Source, 25 October 2006). The advertiser used the woman’s image in a “before” photograph but not in the “after” photograph and implied the change was caused by using the product.
If an individual’s identifiable possessions are the sole or main focus of an ad, the ASA may be likely to uphold. If they have been doctored, are general or are unlikely to be recognised by many, marketers may not need to seek permission (Colt Car Company Ltd, 23 April 2008). In 2014, the ASA upheld a complaint about photographs of an individual’s house, stating that the ad portrayed the identifiable possessions of the complainant without their permission to do so. (Hansen & Co (UK) Ltd, 16 April 2014)
Members of the Royal Family should not normally be shown or mentioned in marcoms without their prior permission (see ‘Privacy: Royal Family’). The Code urges marketers to get permission before featuring people with a public profile but the ASA might be lenient in the absence of offence, adverse portrayal or implied endorsements. References that accurately reflect the content of books, articles or films are usually acceptable without permission, and marketing communications that treat those in the public eye humorously and without undue malice might be acceptable even if marketers have not obtained permission – however, this does depend on the final execution of the ad.
Of course, marketers should not contact members of the public if they do not have permission to do so. For example, the ASA upheld a complaint against a marketer that sent an SMS text message to someone from whom it had not obtained explicit consent (World Networks, 14 February 2007). See ‘Database Practice: Consent (Explicit)’ and ‘Database Practice: Consent (General)’.
Marketers might want to seek legal advice if they have concerns about using the names, images or possessions of individuals.