Celeritas

The Legal Update for the Media Industry

Using celebrities to endorse products: What not to do!

One of the easiest ways to enhance the value of a brand is to use a celebrity as the face of an advertising campaign. Take, for example, Gary Lineker for Walker’s Crisps, Jamie Oliver for Sainsbury’s.

It is very tempting to use celebrities to advertise a product, as the suggestion is that the celebrity uses the product, which can be a very influential form of marketing. Celebrities are also often used to advertise entertainment products, such as computer games, TV shows or films, and will often launch and sell their own products, such as fitness videos, books and perfumes.

Celebrity endorsement

Problems can arise, however, if advertisers use celebrities to endorse their product without permission. Failure to obtain consent could give rise to a claim by the celebrity for passing off.

Eddie Irvine brought proceedings against Talksport in passing off in relation to a photograph featuring him holding a small radio to his ear on which the Talksport logo appeared, thus giving the impression that he was listening intently to Talksport radio. The action was successful because he had not agreed to the use of the image or to give any endorsement of Talk Radio.

Responsible advertising

When a celebrity is used in an ad, this will often attract more attention to the ad. It is in both the advertiser’s and the celebrity’s interests to ensure that the advertising campaign complies with ASA standards, and that the content is responsible.

Complaints were made to the ASA about a Walker’s Crisps ad featuring Gary Lineker on the basis that it encouraged bullying, although the complaints were not upheld. The ASA also received complaints about an ad for a hip hop artist’s new album, “Get Rich or Die Tryin”, in which 50 Cent was shown holding a gun as well as a child.

Do’s and don’ts

As with all adverts, if a celebrity makes any claim in an ad beyond the acceptable generic “I think it’s great” puffery, the advertiser must be able to substantiate the claim, and prove that it is not misleading or dishonest.

It is worth noting that celebrities cannot be used in certain types of adverts, such as TV adverts for food and drink with a high fat, salt or sugar content, which are targeted directly at pre-school or primary school children, or TV adverts for medicinal products or treatments.

Finally, make sure that you obtain consent from the celebrity you intend to use in any marketing campaign, or you could face an expensive legal claim.

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Yellow card for bloggers?

Social networking websites have experienced phenomenal growth in recent years, although many users fail to appreciate that the comments they post remain subject to existing libel laws.

Fans of Sheffield Wednesday Football Club will be acutely aware of the potential consequences bloggers may face following a recent High Court action by their club. The club and its directors brought a claim against the owner and operator of the website, www.owlstalk.co.uk, requesting an order for disclosure of the identity of 11 bloggers who had made 14 postings on the site that were alleged to be defamatory.

Test for disclosure

The club and its directors sought disclosure of the identities of the bloggers following the principle first established in Norwich Pharmacol v Customs & Excise Commissioners [1974]. In order to obtain disclosure of the bloggers’ identities (to allow the club to commence an action against the individuals for libel), the court confirmed that the club needed to satisfy a three stage test for disclosure, namely that:

1. It had a prima facie case for libel against the individual bloggers
2. There was no other way of identifying the bloggers, and an order disclosure was therefore necessary to enable an action to be brought
3. The owner of the website had facilitated the publication of the defamatory comments and was able, or likely to be able, to provide information to allow the bloggers to be sued.

In this instance, the court confirmed that it was satisfied that the 3 stage threshold test for disclosure had been met. The court was conscious, however, that it was necessary to strike a balance between the individual bloggers’ expectation that their identity would remain anonymous without unjustifiable invasion, against the right for a party to pursue an individual for defamatory comments which could be detrimental to their reputation.

The court confirmed that in order to maintain a balance, it still retained a discretion as to whether it was “just” to make the order. The court decided that the content of 7 of the 11 members’ postings bordered on the “trivial”, and that therefore it would not be right to make an order for disclosure of their identities, as that would be “disproportionate and unjustifiably intrusive”. Consequently, an order for disclosure was made in respect of the remaining 4 members only.

A fine line?

The fact that disclosure of their identities ultimately rested on the court’s discretion demonstrates the fine line that bloggers tread when posting potentially defamatory comments on the internet. The scope of the court’s discretion will obviously depend on the individual circumstances of each case, and how the competing issues are viewed on each occasion. The court recognised that it would not allow disclosure of individual’s identities for “trivial” postings, however, precisely how that is interpreted is likely to be the subject of some debate.

Ultimately, potential claimants may be more reluctant in other instances to pursue an action where the authors of such comments could well be located in multiple jurisdictions and difficult to pursue, making such actions rare. The case does, however, provide a reminder for many people that they should be conscious of the potential consequences of the publication of their postings on websites, which potentially have a global audience.
		Andrew Vickerstaff

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Copying CDs to be legal?

The Government has thrown its weight behind proposals to modernise the law of copyright to enable private individuals to transfer music and other forms of media from one format to another.

The change would create an exception from existing copyright law, thereby ending the current regime under which the common practice of downloading CDs onto MP3 consoles such as iPods is illegal. It also promises to provide schools and libraries with greater flexibility to copy media.

Whilst very few people are actually aware that the practice is contrary to copyright law and very few people are prosecuted under the current law, the Government decided to give its support to proposals contained within the Gowers Review of Intellectual Property, which reported in December 2006.

That report concluded that the law concerning private copying was overly restrictive, since the practice was considered by the general public to be legitimate and did not clearly damage the interests of copyright holders. It was concluded that in the majority of cases individuals would not have purchased further copies of a particular track or albums had they been unable to make additional copies for their private use.

The report therefore found that pursuing individuals for what was considered to be a ‘victimless’ breach of copyright law made it more difficult to justify penalising those activities which did cause the entertainment industry losses, such as the free downloading of music from the internet. It is anticipated by industry observers that, when implemented, the proposed exception will be narrowly framed and will not extend to the sale of copies or to wider file sharing.

The proposal has caused some anxiety within the entertainment industry, with concerns raised that as music and other media is increasingly stored on hard storage systems such as PCs, copyright holders will lose out. Under EC law copyright holders are entitled to ‘fair’ compensation from EU member states which allow some form of private copying, but at this stage the UK Government has not yet committed itself to compensating copyright holders, citing provisions of EC law which indicate that where there is only minimal prejudice to copyright holders, ‘fair’ compensation will be nil.

Government support comes at the end of the first stage of consultation on the Gowers Review proposals. The consultation is expected to finish in April 2008, after which the Government will draft any changes to the law.

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Developments in the law of Privacy

UK law has arguably struggled to keep apace of modern cultural developments in respect of the right to privacy. The rise and rise of “the celebrity”, and the media intrusion that celebrities suffer, has not yet generated a coherent body of law which sets out the exact nature of an individual’s privacy rights. However, two recent high profile settlements are increasingly likely to influence the material that the media chooses to publish.

The law of privacy originally developed in the UK from the tort of breach of confidence; this arises when a claimant’s confidential information has been disclosed in circumstances importing an obligation of confidence. Following the incorporation of the European Convention on Human Rights into UK Law (including the Article 8 right to respect for private and family life), the UK must give effect to judgments of the European Court of Human Rights.

In the case of Von Hannover, the ECHR took an expansive view of the notion of “private life”, and held that publication of photographs of Princess Caroline of Monaco in her daily life fell within the scope of her “private life” and therefore could not be published unless they contributed to a debate of general interest. The settlements described below illustrate an increasing acknowledgment of the Von Hannover decision in the UK.

Blair summer holiday

In November 2007, Tony and Cherie Blair threatened court proceedings for infringement of privacy against Associated Newspapers Limited (ANL), following The Daily Mail’s publication of long lens photographs of the couple taken on a holiday at Sir Cliff Richard’s villa in Barbados.

The Von Hannover decision stressed that pictures taken of individuals in “secluded and private places” attracted the protection of privacy rights. In light of this principle, it is little surprise that ANL has made a payment (of an undisclosed sum) to the Blairs to settle the dispute.

Sienna Miller’s tale

The right to privacy appears to have gained further momentum, at least in the minds of the media and their advisers, following the claim brought by Sienna Miller against Xposure Photo Agency and News Group Newspapers (NGN), which publishes The Sun and The News of the World.

Ms Miller’s claim for invasion of privacy arose out of NGN’s publication of nude photographs of her taken whilst she was filming the forthcoming film “Hippie Hippie Shake”. NGN and Xposure have reportedly paid £37,500 plus legal costs to settle the dispute and agreed not to republish the photographs and delete all copies.

Ms Miller’s case differs from the usual situation of photographs taken of individuals in an entirely private setting, as in the Blair’s case. On the assumption that this was a closed film set, the settlement suggests that the right to privacy can extend, in certain circumstances, to images taken of someone outside their private life if taken on private property.

It is clear the media will need to proceed with caution when publishing images of celebrities and public figures, especially if the photographs capture those individuals in their “private life”. Given the modern fascination with celebrities, it seems likely that disputes such as those described above will find their way into the UK courts in the future. If so, we can expect to see the continued development of laws protecting both privacy and commercial image rights.
		Martin Pennington

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Case update: Seaga v Harper [30 January 2008]

Edward Seaga was the former leader of the Jamaica Labour Party. At a meeting in 1996 attended by the media, Mr Seaga discussed the impending appointment of a commissioner of police to be selected by the party in government, the People’s National Party (“the PNP”).

At the meeting, Mr Seaga stated:

“Part of the strategy is to get rid of the present commissioner of police, and to put in place someone whose credentials as a PNP activist are impeccable, reliable, solidly supported – a distinguished supporter of the PNP. The only difference being that he is in uniform.

Mr Harper who is considered to be the person to replace Trevor McMillan is someone who we cannot and never will be able to support, because it is recreating the conditions of 1993, when a similar type of commissioner was in the post who did everything to turn a blind eye in that election.”

Mr Seaga’s words were widely reported in the Jamaican media, and Mr Harper commenced proceedings against him for slander.

The only defence Mr Seaga raised was the defence of qualified privilege. The defence was based on Mr Seaga’s “duty” as leader of the opposition to communicate with the people of Jamaica, who, he claimed had a legitimate interest in hearing what he said (this being the test for qualified privilege).

The case was tried at first instance by Lord Justice Brooks, without a jury. The Judge rejected the traditional “duty and interest” qualified privilege defence on the basis that the publication was to the world at large, and not a communication between persons in a specific “duty and interest” relationship.

The Judge then went on to consider (on his own initiative) whether the “Reynolds” qualified privilege defence was available to Mr Harper.

The Reynolds defence is a set of considerations first set out in the case of Reynolds v Times Newspapers Ltd and Others [1999] to help publishers in the media defend libel claims.

The ten considerations included:

1. The seriousness of the allegations
2. The nature of the information, and the extent to which the subject matter is of public concern
3. The source of the information
4. The steps taken to verify the information
5. The status of the information
6. The urgency of the matter
7. Whether comment was sought from the claimant
8. Whether the article contained the gist of the claimant’s side of the story
9. The tone of the article
10. The circumstances of the publication, including the timing.

The Judge held that it was not only the media who could take advantage of the Reynolds defence, and that it was also available to Mr Seaga. The difficulty for Mr Seaga, however, was that he was not able to prove that his conduct in publishing the allegations about Mr Harper had been sufficiently responsible, or that he had sufficiently investigated the rumours he had heard about Mr Harper. Mr Harper won on liability and was awarded damages.

The judgment was appealed by Mr Seaga. The appeal on liability was dismissed, although Mr Harper’s damages were reduced. Mr Seaga then appealed to the Privy Council. The Privy Council agreed that there was no valid reason why the Reynolds defence should not extend to publications made by persons other than the print and broadcast media.

In theory, the Privy Council has significantly extended the Reynolds Defence, and publishers of in-house magazines, mail shots, election flyers and private publications could now seek to rely on the Privy Council decision if defending a libel claim. The decision may well have the effect that the courts begin to focus on the quality of the investigation carried out by a publisher rather than looking at the nature of the publication itself.

However, many commentators argue that the Reynolds defence was designed solely to protect the media, and that there are conceptual difficulties in its application to non-media defendants. The debate regarding the Reynolds defence is very unlikely to have been put to bed by this decision.

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