Why should Pamela Anderson be able to ban posters showing her with green
ears, or demon eyes, but Tony Blair seemingly can’t? Nick Allen
outlines the problem
Imagine opening your morning paper and seeing a full-page ad consisting
of a photograph of the Baywatch actress, Pamela Anderson, with a huge
pair of pointed green ears superimposed on it.
‘Surely they can’t get away with that?’ you might ask. And unless
Anderson had consented to this portrayal, you would be right.
English law isn’t very sophisticated in this area. For example, there’s
no right of privacy in such a case. But mechanisms do exist whereby an
outraged Anderson would be able to take legal action to prevent such a
Passing-off is an established but rather nebulous legal remedy that
protects goodwill or commercial reputation.
Traditionally, this has been used to protect the goodwill relating to a
brand or a trading name by preventing competitors from using the same or
a similar name.
However, the prevailing wisdom among legal experts in this area is that
passing-off can be used to protect the goodwill a personality has in
relation to the use of their name or image.
So Anderson could protect herself by threatening legal proceedings in
respect of passing-off against the company that makes the product. But
how does this differ from the superimposition of demonic eyes on to a
photograph of the Labour leader, Tony Blair, by the Conservative Party?
In practical terms, there’s no difference, but there is a legal
distinction. A successful action in passing-off relies on a number of
components, one of which is proof of potential damage to goodwill.
Inevitably in such an action, the evidence will have to show that
members of the public are likely to be confused that a personality is
involved in the endorsement of a campaign.
Although you may have wondered if Anderson consented to the
superimposition of pointed green ears, it’s improbable that you would be
similarly confused about Blair and the demonic eyes.
From a legal standpoint, it’s generally accepted that certain types of
personalities are unlikely to prove the necessary element of goodwill
(that’s to say, the right to make money from endorsing products)
necessary for a successful action in passing-off.
For example, certain categories of famous people, such as convicted
murderers and prominent politicians, don’t usually endorse products and,
therefore, have no goodwill relating to product endorsement rights to
So the likelihood is that Blair would be unable to launch a successful
action against the Conservative Party. Nevertheless, he has won the
backing of the Advertising Standards Authority, which ruled that the
poster should be withdrawn because the Tories didn’t ask Blair’s
permission to use his photograph with red eyes superimposed on it.
The ASA allows the Conservatives, Labour and Liberal Democrats a pretty
free rein and exempts them from some of the rules applying to other
Nevertheless, one provision of the ASA code that still applies to party
political advertising is that advertisers are urged to obtain written
permission in advance before they portray any identifiable individual in
an ad. Clearly, Blair would not have given Conservative Party Central
Office permission to use his photo in the ‘new danger’ campaign.
My advice to Blair, John Prescott and Peter Mandelson is that they have
the option to evoke rule 13.1 of the Code of Advertising Practice in
On the other hand, Labour may prefer to sit tight and reserve the right
to use photographs of rival politicians in its own campaigns - as it has
done in the past.
Nick Allen is a partner at the law firm, Edge and Ellison