UK Law and Practice Contributed by: Huw Morris, Dominic Bray, Nick Swimer and Rebecca Coleman, Lee & Thompson LLP
and gifts … solicitations of donations etc”. Certain communications fall outside the ASA’s remit, such as product packaging (unless part of a promotional offer), in-store displays, purely editorial content, press articles (except for paid advertorials), private classi - fied ads and financial promotions (regulated by the FCA). However, other regulators – like Ofcom, Trad - ing Standards or industry-specific bodies – may have authority over these communications. Regulation 2 of the Business Protection from Mislead - ing Marketing Regulations 2008 defines advertising as “any form of representation which is made in con - nection with a trade, business, craft or profession to promote the supply or transfer of a product”. Section 9 of the Ofcom Broadcasting Code, which focuses primarily on in-programming advertising, defines “commercial references” as “any visual or audio reference within programming to a product, ser - vice or trade mark (whether related to a commercial or non-commercial entity)”. The Ofcom Code on the Scheduling of Television Advertising defines “television advertising” as “any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for self-promotional purposes by a public or private undertaking or natural person in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property rights and obligations, in return for payment”. 1.5 Pre-Approvals Generally, no pre-approvals are required from gov - ernment authorities or self-regulatory bodies. Certain industries may require pre-approval, such as pharma - ceuticals, financial services and gambling. Television ads require clearance by Clearcast, which screens scripts and final cuts for compliance with the BCAP Code. Approval is not a guarantee of compli - ance, meaning advertisers may still be subject to investigation and an adverse ruling by the ASA if the ad is later found to breach the Code. The Cinema Advertising Association pre-approves cinema ads, and certain categories of radio ads
(including for gambling and alcohol products) require approval from Radiocentre before broadcast. CAP operates a voluntary non-binding pre-publication clearance service. 1.6 Intellectual Property and Publicity Rights Advertising content must comply with IP laws, par - ticularly laws on trade marks and passing off, regis - tered/unregistered designs and copyright. The UK does not have a standalone “right of publicity” but unauthorised use of an individual’s name, image or likeness may lead to claims of trade mark infringe - ment or passing off (false endorsement) or (depending on context) breach of an individual’s rights of privacy (where there is a reasonable expectation of privacy), or copyright infringement (where copyright in the under - lying work is owned by a third party). Use may also infringe an individual’s rights under data protection legislation. Legal cases (for passing off) have involved famous sports people (Eddie Irvine) and popstars (Rihanna). The BCAP Code requires consent to be obtained before an individual can be featured or referred to in advertising. This is not a strict requirement unless there is an unfair portrayal or implied approval of an advertiser’s product or service. There are limited (and closed) fair dealing defences to copyright infringement that, although relatively untested in the English courts, may apply in certain circumstances, including “caricature, parody or pas - tiche” and “quotation”. The law of defamation may be relevant if an individ - ual is associated with a product or service that could damage their reputation and that association is likely to cause them serious harm. Unauthorised use of third-party IP rights may lead to claims of infringement and liability for damages or an account of profits, and possibly an injunction to pre - vent ongoing use.
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