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Advertising: Humorous advertising, defamation and passing off

19 May 2014

Kevin Pietersen recently settled a dispute with optician Specsavers, over a humorous advert which implied that Pietersen had tampered with his bat during The Ashes in order to deceive Hot Spot, a thermal imaging system used to detect ‘edges’ in cricket.

Duncan Lamont and Hannah Haynes explain the case and examine in what circumstances it can be worth pursuing an action against advertisers. They also explain in what circumstances an athlete’s image can be used in advertising for free.

Kevin Pietersen recently found himself the subject of a ‘humorous’ Specsavers advertising campaign. Having not consented to the advert, and in no way seeing its ‘funny’ side, he sought legal aid. Defamation, passing off and issuing a complaint for breach of the Advertising Code are actions individuals can bring when they find themselves the subject of such ridicule. Claimants will likely succeed in bringing these actions however, with relatively modest damages awarded and no fines imposed by the Advertising Standards Authority (ASA) – there is little incentive not to publish these campaigns.

‘We apologise unreservedly for any distress and embarrassment our advert has caused to Kevin Pietersen. We have removed the advert from circulation’ (*1). These words formed part of the apology Specsavers issued to Pietersen together with an undisclosed ‘substantial sum in damages’, an agreement to pay his legal costs and an undertaking not to repeat the offending advert.

During the 2013 Ashes series, Specsavers published on Facebook, Twitter and in various newspapers and magazines a photograph of Pietersen accompanied with the statement: ‘”Bat tampering” in the #Ashes? Apparently Hot Spot should’ve gone to Specsavers.’ This advert was published following allegations made by an Australian broadcaster that players were using silicone tape on their bats to deceive Hot Spot - the thermal imaging system that had been at the centre of several controversial umpiring decisions. A defamatory implication could be drawn from the proposed advert that Pietersen had tampered with his bat – a damaging allegation for any cricketer. The dispute was finally settled and an agreed statement was read in Open Court.

The story was covered by many newspapers and online blogs – Specsavers profile was raised (those who hadn’t seen the advert might be interested enough to read it, those who had – were free to ‘tweet’, ‘like’ or ‘share’ it), but damages were paid to Kevin Pietersen, although he decided to make a charitable donation. Was all this considerably less than Specsavers should have paid to use Pietersen’s image on such a widespread campaign? Take into account the legal costs and the answer is likely to be ‘no’. Nonetheless, the financial sanctions imposed for publishing humorous but defamatory (or otherwise illegal) adverts may be regarded as a weak deterrent.

Although claims are brought and won, the damages awarded are perhaps not enough. Nearly a century ago, Cyril Tolley, an amateur golfer, successfully brought a claim against Fry’s, the chocolate makers, for caricaturing him on a golf course with a packet of chocolates protruding from his back pocket whilst being praised by a caddie’s doggerel (*2). The law stepped in, ruling the advert defamatory on the basis that Tolley’s capacity as an amateur golfer was harmed in what could be viewed as a prostitution of his status. The case demonstrates that since the early 1900’s, companies have been taking advantage of these advertising opportunities presented by sportsmen - and things have not changed.

For adverts that present sportsmen and women falsely endorsing a product, claimants can bring an action of passing off to prevent an advertiser from misusing their goodwill. Following the case of Eddie Irvine against TalkSport, an action for passing off is now the common route for someone who is able to earn a lucrative income through endorsement deals. Traditionally, this action was used only to protect companies. However, in 1999, TalkSport manipulated a photograph of Eddie Irvine in his Ferrari racing kit to make it look as if he was listening to a TalkSport radio broadcast (*3). Irvine brought an action for passing off.

The court held that if a significant section of the public saw the picture, they would think he was endorsing the radio station, harming the substantial goodwill the racing driver had built up and jeopardising current and future endorsement deals. TalkSport were ordered to pay damages of £25,000 and Irvine’s substantial legal costs. There is no ‘image right’ in the UK however the decision in Irvine carries significant impetus – affording individuals with a new level of protection to their lucrative goodwill and branding (*4).

David Beckham had a potential case against EasyJet in 2003.

EasyJet’s campaign featured a picture of Beckham sporting his new cornrow hairstyle with the tagline ‘Hair today. Gone tomorrow’ in reference to his rumoured transfer from Manchester United to Real Madrid. The United player chose not to pursue a legal remedy. Instead, he merely asked for a charitable donation from the offending advertiser.

A spokesman from EasyJet stated “If we had approached them to use Beckham’s image they would have asked us for £3 million” (*5). So they didn’t. And with the worldwide image rights of Beckham’s club contract alone coming in at £20,000 a week, the £25,000 received in damages by Irvine would hardly have been worth the then England captain’s time.

Moreover, this dispute came only a few months after EasyJet had faced another complaint from an individual who formed the subject of an advert. EasyJet had published a picture of Major Charles Ingram, the infamous ‘Who Wants to be a Millionaire?’ cheat and his wife. The photograph was published with the headline ‘Need a cheap getaway?’ and below it the tagline ‘No Major fraud required’. EasyJet’s response – this was ‘one of a series of humorous topical advertisements, all using celebrities who had recently been in the public eye’. The coughing Major had not granted EasyJet permission to use his image or to mock his predicament (he lost the money and faced jail). The airline got away with it – upon complaint to the ASA, the regulatory body for advertisements, Major Ingram was told that although companies were urged to get permission to use an individual in an advert, they were not required to. And as it was unlikely that the couple would be able to convince a court of substantial goodwill in their names or likenesses and as their reputations were shattered for libel purposes, they had little protection.

Rule 6.1 of the Committee of Advertising Practice Code states as follows:

‘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:

- 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’ (*6).

It is therefore not mandatory for advertisers to obtain prior permission to use material, unless the proposed advert is offensive or adverse. In the Major’s case, the ASA stated that it ‘had not unfairly portrayed them adversely or offensively and was consistent with the general media depiction of them’. EasyJet got off and were free to move on to the Beckham campaign. In cases where false endorsement is alleged, the advertising watchdog only ‘urges’ advertisers to seek written permission to use an individual’s image and even then, the CAP states ‘marketing communications that treat those in the public eye humorously and without undue malice might be acceptable even if marketers have not obtained permission’ (*7).

The CAP provides the example of an advert deemed acceptable for toothpaste depicting Tony Blair shaking hands with George Bush with the tagline ‘Bush and
Blair agree on defence policy’. Commenting, the ASA considered this not to be worthy of investigation because ‘the advert included nothing that was inconsistent with the policies of those featured and portrayed neither politician in an adverse or offensive way’ (*8).

Even if an advert were declared a breach of the CAP Code, the ASA has no power to award financial penalties. Its focus is instead on removing or amending the publication of these adverts. A focus that is arguably futile in an age when things can go ‘viral’ after just a few Facebook posts.

In summary

Specsavers should’ve gone to Pietersen for permission if they had wanted a quiet life. Or chosen a joke that was not defamatory of him. Publishers be warned, if legal action is taken against you for publishing such ‘humorous’ adverts – you can expect to lose. But with the financial risks coming in at less than a licence to use the image of sportsmen, there is perhaps too little incentive to stop them.

First published in worldsportslawreport, November 2013

*1 Kevin Pietersen v Specsavers Optical Group Limited 8 October 2013, Queen’s Bench Division, unreported.
*2 Tolley v JS Fry & Sons Ltd [1930] 1 KB 467, CA; [1931] AC 333, HL.
*3 Irvine v Talksport Ltd [2003] EWCA Civ 423; [2003] 2 All E.R. 881.
*4 This case also arguably heads towards protecting an “image right” which does not yet exist here in the UK.
*5 Julia Day, ‘Beckham asks for EasyJet donation’, The Guardian, 28 May 2003.
*6 Section 6, Privacy, CAP website (21 October 2013) click here
*7 Privacy Permission, CAP website (21 October 2013) click here
*8 Privacy Permission, CAP website (21 October 2013) click here