In an adjudication published on 30 September the Advertising Standards Authority (ASA), the body responsible for regulating advertisements, sales promotions and direct marketing, upheld a complaint that a person’s image had been used in a marketing communication without that person’s written consent.
A company, J&S Security Ltd (J&S), distributed a marketing leaflet which featured an image of an ex-employee in a fluorescent jacket and which included text stating “Fully uniformed guards. All guards are S.I.A. licensed…”
The ex-employee was unhappy about this. He said that when the image was taken he thought it was for the purposes of an identity card and that he had not consented to it being used for marketing purposes. He also complained that to his knowledge J&S guards were not, as stated in the leaflet, S.I.A. registered.
J&S said that the ex-employee had orally agreed to their use of the image and that their guards are S.I.A. registered. They were, however, unable to provide any documentary evidence supporting their position.
The ASA investigated the matter under CAP Code Rules 3.1 (Substantiation), 7.1 (Truthfulness), 13.1(a) (Protection of Privacy) and 14.1 (Testimonials and Endorsements) and upheld both complaints.
The ASA held that because J&S had not obtained the ex-employee’s written consent they had breached Rule 13.1(a). Likewise, because J&S were unable to prove that their guards were registered as they had claimed, the ASA held that the leaflet was misleading and contained a false endorsement.
The points to be taken from this are simple. Firstly, if you want to use images of members of the public in your advertising and promotional material, you should obtain their written consent. This consent must be informed, ie you must explain (in writing) what it is you intend to do with the image. You should also keep the consent as there is no point going to the trouble of getting it if you are then unable subsequently to prove this.
Second, before distributing your marketing material you should obtain (and retain) documentary evidence proving all claims made in the communication. The more contentious the claim, the more likely you are to be challenged. A failure to do so can very easily result in the inconvenience and embarrassment of an adverse ASA decision.