EasyJet ads do not breach privacy of game show cheats

The Mail on Sunday advert showed a picture of Charles and Diana Ingram under the headline, "Need a cheap getaway?"

Beneath the photo were the words: "(No Major fraud required!) Lowest fares to the sun..."

The Ingrams complained that the photograph had been used without their permission and was an invasion of their privacy. They also complained that the ad was offensive and distressing.

The ASA did not agree, stating that while the advertising codes encouraged advertisers to obtain written permission before "referring to or portraying individuals in advertisements," they did not have to. In the opinion of the Authority, there was no breach of privacy.

While the Authority accepted that the advert had offended and distressed the Ingrams, the ASA wrote that "the advertisement had not unfairly portrayed them adversely or offensively and was consistent with the general media depiction of them".

What else could the Ingrams do?

It's possible that the Ingrams could make a claim under the Data Protection Act.

The photograph that was used was taken, presumably, for journalistic purposes as the couple left the court. The photograph constitutes 'personal data' under the Act but newspapers have a right to 'process' that data – i.e. publish the photos – for journalistic purposes in, e.g. a story about their court defeat.

For easyJet to use the photo for advertising, the Ingrams could potentially argue that their personal data has been processed in an unlawful manner. A key test is whether it can be shown that easyJet's action prejudiced the rights and freedoms of the Ingrams.

Protecting celebrity rights

Otherwise, protecting the image of a celebrity can be difficult in the UK. In fact, the closest the UK courts have come to recognising a "celebrity right" is Eddie Irvine's success against talkSPORT in the High Court in March 2002. It simply recognised the commercial value of personal endorsements.

A promotional brochure had been sent to less than 1,000 people advertising Talk Radio with a photo which had been doctored to show Irvine holding a radio bearing a Talk Radio logo, instead of a mobile phone, which he was holding in the original photo.

The judge confirmed that the courts cannot be asked to uphold anyone's exclusive rights to merchandise their celebrity; but Talksport's mistake was to run a campaign that unfairly exploited someone's commercial goodwill by implying a connection that did not exist.

More recently, Michael Douglas and Catherine Zeta Jones, in a dispute over the publication of unauthorised photos of their wedding, argued that the UK has a law of privacy by way of the Convention on Human Rights and the Human Rights Act coupled with decisions of the European Court of Human Rights. But the judge disagreed, albeit expressing his sympathy.

France, Germany, Italy, Holland and Australia recognise publicity rights for celebrities, as do some US states. For example, in 1999, Dustin Hoffman was awarded $3 million in damages after a magazine published a computer image of his head and face superimposed on the body of a woman in a dress and high heels. The court ruled that Hoffman was "Robbed of his dignity, professionalism and talent and violated by technology."

See the ASA's ruling.