March 3, 2011 1

The right, or lack of right, to image in UK law

By Leon Glenister in Right to privacy

The celebrity endorsement industry is ever growing

If the BNP used your image on their promotional material, you may feel violated – but you have no legal recourse in English law.

This strange situation is the result of the UK having no ‘misappropriation of image’ action, something common in other jurisdictions like the US. The US action of ‘misappropriation of likeness’ was famously used by Vanna White (the US version of Jenny Powell on Wheel of Fortune) who successfully sued Samsung for dressing a robot as her in an advert. And a right to image comes as part of the right to privacy in most Civil Codes. In Germany, national goalkeeper Oliver Kahn used the action to prevent EA sports using his image on their new FIFA game.

When your image is used, the harm is twofold. Firstly, it can be emotionally harmful if you are misrepresented. Secondly, in this consumerist age where individuals often have their own brand, the harm can also be financial. Celebrities now make significant income from allowing companies to use their image to sell products, and if companies can freely use celebrity images it can deprive the celebrity of income.

Typical of the incremental nature of British common law the UK courts have, unsatisfactorily, attempted to compensate for this gap in the law by stretching existing causes of action. In tort law, defamation will only protect the unconsenting new face of the BNP if they can prove a reasonable person would think less of them. This would require the court to make a political statement which is unlikely.

Like tort law, intellectual property provides limited assistance. Copyright only exists in a certain photo, so the BNP could take their own photo and not breach anyone’s copyright. An individual whose image has been used by a company to misrepresent an endorsement may rely on an action called ‘passing off’, notably used by Eddie Irvine who sued TalkSport for use of his image in an advert. This depended on the reputation of Irvine at the time since he had a successful racing year, and the fact he was in the business of endorsing products. The action, therefore, depends on exploitation of reputation, and it is unlikely the reputation of the individual whose image is used by the BNP will be commercially sufficient for the action.

The crux of the issue is that existing causes of action do not focus on an individual’s privacy of image, and this may soon be problematic under the European Convention of Human Rights. Article 8 protects an individual’s “right to respect for his private and family life”, and the European Court of Human Rights has recently suggested this encompasses a right to image.  In Reklos v Greece, the Court stated “ the right to protection of one’s image is…one of the essential components of personal development and presupposes the right to control the use of that image”.

Currently, the closest the UK has to a privacy action is ‘misuse of private information’ (used by, for example, Naomi Campbell and Max Mosley where newspapers have printed private information). This is an extension of the breach of confidence action. The obvious next step is separate these two actions so that ‘misuse of private information’ can more flexibly protect privacy. Then privacy could encompass both a right to image and right to personality. Like the current action, it would assess the privacy right at stake and balance it against any freedom of expression interest.

The gap in the law where an image right is concerned is both increasingly obvious and worrying. The courts have struggled with protection of celebrity merchandising for decades and this would easily be solved by a ‘right to image’. This would also help individuals whose image has just been inappropriately used without their permission. It may be that the European Court has now provided the impetus for the development of a more general privacy action in the UK.

For further reading on how the UK protects the right to personality, see here.

One Response to “The right, or lack of right, to image in UK law”

  1. [...] a couple of posts which will interest Inforrm readers.  First, there is a discussion of the “Right, or lack of right, to image in UK law” – suggesting that there “the gap in the law where an image right is concerned is [...]