January 2004
118 118 Ads To Keep On Running Despite Regulator Decision
The popular TV adverts for the 118 118 directory enquiries service provided by The Number (UK) Limited have been found by the regulator, Ofcom, to breach the Advertising Standards Code. David Bedford brought a complaint against the adverts, feeling that the depiction of the two runners wearing red socks, light blue shorts and white vests sporting two red hoops, as well as long hair and moustaches, was a reference to the image he portrayed as an athlete in the 1970s.
The code states that, with exceptions, living people must not be portrayed caricatured or referred to in advertisements without their permission. The Number argued that they had used a generic image of a 1970s runner, and that to restrict the adverts would undermine their rights to free expression and to use their intellectual property under the Human Rights Act.
In spite of these arguments the regulator found that the adverts had breached the code, as the actors were indeed portraying a caricature of David Bedford and that he did not give permission for his image to be used. This was despite his appearance in the Sun newspaper flanked by the two actors used in the advert, although at the time he stated that he had not seen the adverts that he later complained about. Ofcom refused to ban the adverts, however, as the amount of money that The Number had spent on their campaign would make such a decision disproportionate to the harm to feelings suffered by Mr Bedford.
BRIFFA Comment:
The Advertising Standards Code prevents the use of a living person's image without permission unless the exceptions apply. The exceptions relate to the use of the image where the person involved is the subject of a specific publication, use in relation to the generic news media where it is expected that the person would not object, and incidental use. The ordinary laws of defamation also apply in the code.
UK law has not formally recognised the protection of personality rights. However, the court in the case of Irvine and others v Talksport Ltd held that the law of passing off could apply to prevent businesses purporting to have obtained celebrity endorsements. Passing off requires that the person has goodwill in their image, the use of that image causes confusion to its audience and that some damage is caused to the owner of the image by its use.
As Mr Bedford did not receive damages or get the advert banned, he is taking his complaint through the courts. It will be interesting to see whether the courts take a different view from the regulator as there is a divergence between the rules in the code and the law of passing off.