The ASA/CAP have released a post called: Can we get some privacy? A guide to the privacy rules. I have enclosed the text of the link below, but please have a look at the ASA/CAP site as there are lots of things of interest to anyone with an interest in Ethical Marketing.
Everyone values their privacy, from high street consumers to members of the Royal Family. These concerns are reflected to some extent in law and also in the privacy rules in Section 6 and Section 10 of the CAP Code. As marketers seek to make their ads relatable by featuring celebrities or members of the public, it’s important to make sure they do so in a way that follows the rules.
The Royal Family
- First, it’s likely to be acceptable if the advertisers have permission in advance.
- Second, if it’s only an ‘incidental’ reference that’s not connected to the product being advertised.
- And third, if the ad is promoting a product such as a book or film about the family member in question
If you don’t have permission, it’s more than a passing reference, or if the product doesn’t already depict them, advertisers should respect their privacy.
Members of the public
If an ad refers to anyone in an adverse or offensive way, the Code says that it would only be acceptable if the advertisers had written permission from that person to do so.
If the ad doesn’t portray them negatively, and just refers to them or shows them in a neutral or positive light, marketers are still urged to seek their written permission. If you haven’t got permission, it’s a good idea to seek legal advice in advance. If a member of the public doesn’t wish to be associated with a product, they may have a legal claim against ads that imply their approval or endorsement.
The same principle applies to people’s identifiable property, such as a house or car. If an ad shows someone’s house and its address could be easily identified (e.g. if the house number or road name is visible), and they haven’t given permission, this is likely to be a problem.
If the only person who recognises it is the homeowner or someone who’s already familiar with the property, and it isn’t more generally recognisable to consumers, the ad is unlikely to break this rule. Similarly, if someone’s car is shown in an ad, it’s only likely to break the rule if an identifiable feature like a number plate is also visible.
People with a public profile
If someone is in the public eye, they still have a right to privacy, and this is reflected in the CAP Code. As with other members of the public, they shouldn’t be referred to in a negative way unless they’ve given permission. And advertisers are likewise urged to get permission before referring to them at all.
The only potential exemption to this rule is where an ad refers to someone’s publicly stated position or views on a given topic, and if the contents of the ad are consistent with those views. If it misrepresents their views, it’s likely to break the rules.
Privacy concerns don’t just apply to the content of ads. The ways in which marketers process and collect consumers’ data are subject to legislation like the General Data Protection Regulation (GDPR), enforced by the Information Commissioners Office (ICO), and are also covered by Section 10 of the CAP Code. This includes important principles like the need for consumers’ explicit consent before using their contact details to send them marketing e-mails.
For further guidance, our Copy Advice team are on hand to provide free, bespoke advice on your non-broadcast ads.