Section 6 of the CAP Code specifically deals with the portrayal of individuals and their possessions. It is not however, the only section of the Code to look at when considering whether or not you can (or should) refer to, or feature, an individual in a marketing communication.

There a number of sections of the CAP Code which deal with issues that are linked to privacy. For example Section 10 deals with database practice requirements when it comes to marketing communications and Appendix 3 covers the rules relating to Online behavioural advertising.

The rules relating to Harm and Offence require that “References to anyone who is dead must be handled with particular care to avoid causing offence or distress” (rule 4.3). There aren’t many published rulings in relation to that rule, although the ASA has taken informal action on a number of occasions resulting in ads being withdrawn. In 2014 the ASA considered that a press ad which referred to a recently deceased person to promote a book breached rule 4.3 and ruled that a (now infamous) ad which referred to a murder trial had made an implied reference to the victim which it ruled offensive.

Rule 6.1 states that marketers must not unfairly portray or refer to anyone in an adverse or offensive way unless that person has given written permission to allow it. A portrayal does not need to be offensive to be considered ‘unfair’. Marketing communications for a windfarm that featured photographs of an individual and implied that he approved of the development when he did not were ruled to portray the individual unfairly following his complaint to the ASA. Rule 6.1 does not bar the use of caricatures or impersonators but marketers considering this approach should take it into account (see this guidance for more information).

Even if you are portraying or referring to people in a way that is not adverse or offensive the Code urges marketers to obtain permission before including members of the public or their possessions, referring to those with a public profile or implying personal approval. This rule seeks to protect people featured in marketing and could be applied by the ASA in addition to the rules on ensuring that the use of testimonials and endorsements do not mislead, or on its own, depending on the nature of the complaint.

We also have specific guidance on depicting the Royal Family and Celebrities.


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