Advertising issues arose in the United Kingdom recently when the country’s advertising regulator criticized a network television channel for airing alcoholic beverage ads during youth-directed programming, and a retailer lost a suit brought by Rihanna over the sale of a T-shirt featuring her image.
The Advertising Standards Authority released four decisions addressing ads that ran during the airing of U.S. sitcoms How I Met Your Mother and The Big Bang Theory, as well as the movies Aquamarine and X-Men. The U.K. Code of Broadcast Advertising prohibits the airing of alcoholic ads “shown in or around programmes commissioned for, principally targeted at or likely to appeal particularly to audiences below the age of 18 years.”
Audience indexing should be used as a statistical tool to determine the representation of viewer age, the ASA noted. When the numbers were applied to The Big Bang Theory, the regulator found that the audience index demonstrated that a percentage of viewers under 18 watching during the 8 p.m. hour were over the set limits. The network said its policy was to review the index on a quarterly basis, but it had not noticed an increase in younger viewers because the review had not been conducted.
A quarterly review period was insufficient to comply with the Code, according to the decision, as it “could result in a situation where a programme consistently exceeded the [age] index for three months before action was taken, which should not be possible in a compliant forecasting process.”
The ASA similarly concluded that a breach of the Code occurred in decisions about How I Met Your Mother and Aquamarine and recommended that more frequent review of the audience index was required to achieve compliance.
However, the regulatory body found that alcohol ads aired during showings of X-Men and X-Men: The Last Stand did not violate the Code. Neither movie was “commissioned for or principally directed at audiences below the age of 18 years,” the ASA wrote.
In other British news, a judge ruled against retailer Topshop in a suit brought by Rihanna alleging the company used her image without her permission.
The store sold T-shirts in March 2012 bearing a picture taken of the pop star during the shooting of a music video. Topshop purchased a license for the image from the photographer but did not get permission from Rihanna. She filed suit, claiming that the use of the image constituted “passing off” under U.K. law. To set out a claim for passing off, a celebrity must establish that she has a goodwill and reputation among relevant members of the public, the conduct complained of must be shown to make a misrepresentation or is likely to deceive those members of the public into buying the product because they think it is authorized by her, and the misrepresentation must cause damage to her goodwill.
Judge Colin Birss of the High Court found that Rihanna had set forth a claim against Topshop. While he said it “is certainly not the law that the presence of an image of a well-known person on a product like a T-shirt can be assumed to make a representation that the product has been authorised,” he found that under the circumstances purchasers of the Topshop shirt could have been deceived.
Rihanna has built up “ample goodwill” with the public, particularly young females aged between 13 and 30, and Topshop makes an effort to connect its company with celebrities (for example, sending a tweet when Rihanna once shopped at a store). “The public links between Topshop and famous stars in general, and more importantly the links to Rihanna in particular, will enhance the likelihood in the purchaser’s mind that this garment has been authorised by her,” Judge Birss wrote.
Rihanna fans in particular “will be induced to think [the T-shirt] is a garment authorised by the artist,” the Court said. “The idea that it is authorised will be part of what motivates them to buy the product. I am quite satisfied that many fans of Rihanna regard her endorsements as important. She is their style icon,” Judge Birss concluded. “Many will buy a product because they think she has approved of it. Others will wish to buy it because of the value of the perceived authorisation itself. In both cases they will have been deceived.”
Judge Birss determined that Rihanna did suffer damage but did not assign a dollar value.
To read the ASA’s four decisions involving Channel 4, click here.
To read the decision in Fenty v. Arcadia, click here.
Why it matters: Judge Birss noted that the U.K. does not recognize a right of publicity. “Whatever may be the position elsewhere in the world, and however much various celebrities may wish there were, there is today in England no such thing as a freestanding general right by a famous person (or anyone else) to control the reproduction of their image,” he wrote. However, Rihanna was able to make a successful claim of “passing off” by establishing all three elements of the theory. Judge Birss determined that Topshop deceived consumers and caused injury to her goodwill. How damages will be calculated remains to be seen.