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Outcome of appeal by The Number (UK) Ltd regarding complaint by David Bedford

27 January 2004

Ofcom content board

Appeal by THE NUMBER (UK) LIMITED

Complaint by DAVID BEDFORD

Concerning the 118 118 Runners TV advertisements

Summary of Findings

On the basis detailed in the Decision:

1. The Content Board found as a fact that the 118 118 Runners featured in The Number's TV advertisements do caricature David Bedford by way of a comically exaggerated representation of him looking like he did in the 1970s, sporting a hairstyle and facial hair like his at the time, and wearing running kit almost identical to the running kit that was distinctively worn by him at the time, including red socks, sky-blue shorts with gold braiding and a vest with 2 hoops. Whether this was or was not the original or final intention of The Number is not the point, but the caricature was not fortuitous, since it is the evidence of The Number itself that reference was made to 1970s photographs and videos of David Bedford (among other runners) at the time when the actors who play the Runners were being chosen and their appearance was being determined. The Number concedes that it neither sought nor obtained David Bedford's permission to be caricatured. Caricature without permission constitutes a breach of Rule 6.5 of the current Advertising Standards Code.

2. The Content Board kept in mind that under the Communications Act 2003 regulatory activities should be targeted only at cases where action is needed. David Bedford delayed for about 6 months before making a complaint. During that period The Number committed itself to very substantial expenditure in continuing the advertisements in the same form and in developing a brand image accordingly. The Content Board had made no finding as to whether The Number set out specifically to caricature David Bedford. It found no evidence that David Bedford had necessarily suffered actual financial harm as a result of the caricature. For all these reasons the Content Board decided that a direction to licence-holders that would have the effect of banning the advertisements would be disproportionately damaging to The Number compared with any harm to the feelings or reputation of David Bedford suffered as a result of the advertisements. However, it considered that any harm suffered by David Bedford as a result of the advertisements, or of the public believing that he had endorsed the 118 118 service, or indeed in the public being misled on this issue, could be sufficiently addressed by publication of the Content Board's findings that there had been a breach of Rule 6.5 and that David Bedford had not endorsed the 118 118 service. The Content Board's conclusions are without prejudice to any private law claim that David Bedford may have against The Number.

Decision

Introduction

1. The Number (UK) Limited ("The Number") seeks to appeal the Decision of the Independent Television Commission (Ian Blair) of 23 December 2003 that The Number's '118 118 Runners' TV advertisements portray or caricature without his permission David Bedford, the athlete who gained the 10,000 metres world record in 1973, so as to breach the ITC Advertising Standards Code, rule 6.5: "6.5 Protection of privacy and exploitation of the individual
With limited exceptions [none of which apply in this case], living people must not be portrayed, caricatured or referred to in advertisements without their permission."

The Hearing

2. From 29 December 2003 the ITC Advertising Standards Code continues (until replaced) to have effect as if it were an Ofcom Standards Code promulgated under the Communications Act 2003, section 319(1): this is the effect of the transitional provisions in section 406(6) and Schedule 18, paragraph 43(1).

3. By virtue of Ofcom's interim 'Guidelines for the handling of standards complaints and cases (in programmes, advertising and sponsorship)' dated 1 December 2003, paragraph 23, after a Decision such as that of 23 December 2003:
"The Chairman of the Content Board will decide whether to grant a further review or not. A review will normally be conducted by the Content Board. The decision of the Chairman or the Content Board is final."

4. The Number did wish to appeal. It was decided that a further review should take place, and that there should be an oral hearing before the Content Board. Both The Number and David Bedford submitted voluminous evidence going to the merits of the Complaint, and the Chairman of the Content Board indicated at the beginning of the hearing that the Content Board would prefer to treat the further review not merely by way of 'review' alone: in other words that it should not have the sole purpose of subjecting to examination every procedural step that Ian Blair took or might have taken, but should have the purpose of hearing and determining the issues afresh on the merits. Counsel for The Number made a strong protest about this and other matters, but we decided to proceed with the rehearing on the merits. First of all, The Number was relying upon rights guaranteed it by the Human Rights Act 1998, namely its rights to freedom of expression (Article 10) and to exploit its intellectual property (First Protocol, Article 1). Determining the effect of those rights requires an independent and impartial tribunal conducting a fair hearing (Article 6). We considered that a rehearing would be fairer than a mere review of the procedures adopted. Secondly, despite counsel's protest, The Number as the aggrieved party was relying on fresh evidence and fresh arguments on the merits. David Bedford might equally have sought to rely on it being a sufficient answer that Ian Blair's decision was not susceptible to procedural attack, but did not do so, and in turn relied on fresh evidence and fresh arguments on the merits. We concluded that justice was more likely to be done by a rehearing on the merits than by a review of procedural technicalities. Indeed, a rehearing on the merits would cure any procedural defect so as to make wrangling about procedural issues wholly unnecessary and unproductive.

5. We did not consider any evidence that had not been seen by both parties, and the parties were told so at the beginning of the hearing. There were a number of disputed issues of primary fact raised on the written evidence, and none of the witnesses gave oral evidence, but in the end we found it unnecessary to resolve any of these disputes.

6. We were also referred to a number of legal authorities, but we did not find any of them helpful on any contentious issue which we needed to resolve.

Do the advertisements caricature or portray David Bedford?

7. The first issue for us to decide was whether the advertisements in fact portray or caricature David Bedford, it being conceded on behalf of The Number that if so, David Bedford never gave his permission. We approached this as a question of fact to be judged objectively on all of the evidence submitted to the Content Board, and on a balance of probabilities. We considered that we should ask the question of ourselves rather than of some other or hypothetical persons, particularly since the Communications Act 2003, sections 12 and 13, clearly envisage that the members of the Content Board should have a membership with relevant experience, and be independent and representative.

8. In this context we did not find it helpful to consider or speculate on:

8.1. the subjective intentions of The Number or its advertising or other agents in relation to how the advertisements were devised or how the Runners were cast and presented;

8.2. the amount of money which The Number has invested, or which it may lose if the advertisements have to be withdrawn;

8.3. whether certain individuals or groups of individuals did or did not recognise the advertisements as caricaturing David Bedford;

8.4. whether the advertisements do or do not breach other different standards or Rules or provide David Bedford with a remedy obtainable at Court.

9. Nor did we accept that a finding of breach required that:

9.1. the Runners should be compared with David Bedford only as he looks today rather than as he looked and dressed when running in the 1970s;

9.2. David Bedford should prove actual financial loss as opposed to the harm of portrayal or caricature without permission;

9.3. the advertisements should have included explicit or intentional reference to David Bedford: under the Rule, being "referred to" is clearly an alternative to being portrayed or caricatured, not an additional requirement.

10. We took account of the rights afforded under the Human Rights Act 1998 to The Number of freedom of expression (Article 10) and protection of its intellectual property rights (First Protocol, Article 1), and to David Bedford of respect for privacy (Article 8), and his right at common law to uphold his reputation. This did not cause us any particular difficulty, because:

10.1. although Article 10 certainly protects freedom of speech in the context of commercial advertising, it expressly provides that such freedom of speech may be subject to state licensing of television enterprises (Article 10(1)) and to such restriction by law as may be necessary in a democratic society for the protection of the reputation or rights of others (Article 10(2));

10.2. although the First Protocol, Article 1 certainly protects intellectual property rights, it is expressed to be subject to the conditions provided for by law, which may include restricting the exploitation of intellectual property rights by some in order to protect the rights of another to exploit his own image or to protect his own reputation or privacy.

11. After considering all of the evidence and the submissions of counsel, we readily concluded that although the advertisements do not portray David Bedford or refer to him, they do indeed include a caricature of him, and not merely a generic representation of runners from the 1970s. It is our view that each of the twin Runners is a comically exaggerated representation of David Bedford looking like he did in the 1970s, sporting a hairstyle and facial hair like his at the time, and wearing running kit almost identical to the running kit that was distinctively worn by him at the time, including red socks, sky-blue shorts with gold braiding and a vest with 2 hoops. Whether this was or was not the original or final intention of The Number is not the point, but the caricature was not fortuitous, since it is the evidence of The Number itself that reference was made to 1970s photographs and videos of David Bedford (among other runners) at the time when the actors who play the Runners were being chosen and their appearance was being determined.

Estoppel

12. The second issue we have to decide is whether David Bedford is estopped from pursuing his complaint, which turns on whether he made a representation that he would not complain, that was relied on by The Number, so that it would be unconscionable to permit him to pursue the complaint. So far as this is a question of fact, we adopt much the same approach to the evidence and the submissions as we did to the question whether he was caricatured.

13. The Number relies upon the fact that in the 29 March 2003 issue of The Sun newspaper, a photograph was shown of David Bedford posing with the Runners, and the following words were attributed to him:
"Bedford, 53, now race director for the Flora Marathon, admits he has not seen the ad.

But, as he met the 118 boys courtesy of SunSport, he said: "It's a bit of fun. Maybe if I dyed my hair black I could get a part too. They're even wearing the type of shorts I used to wear. Except I filled mine a bit better." "

With rather more hesitation than with the caricature issue, we have concluded that this was insufficient to amount to a representation by words and conduct that David Bedford would not complain about the advertisements that he had not seen. We do not take the period of 6 months after the item in The Sun during which David Bedford did not complain about the advertisements as advancing The Number's case in this respect, since silence cannot in itself constitute a representation.

14. With still some but less hesitation we also conclude that The Number did not in fact place reliance upon what was published in The Sun in refraining from approaching David Bedford or from making changes to the advertisements. The Number's evidence was that if David Bedford had made it clear at the time that that he was not happy with the advertising campaign because he thought it infringed his rights, then The Number would have acted differently. We do not consider that this statement gives sufficient support to the proposition that The Number did rely upon this newspaper report to indicate that there was no risk that they might be wrong in contending that there was no caricature of David Bedford, and we remain unconvinced that The Number did rely upon this newspaper report to this effect. It may not be without significance that when much later David Bedford did complain, The Number adopted a strong stance. Its counsel sought to describe The Number at that time as conciliatory and suggesting mediation without response. However, the solicitor's letter we have seen suggests to us the opposite, namely an aggressive stance and a response to David Bedford's proposal for mediation which his counsel rightly called a "fob-off".

Consequences of finding of breach

15. We therefore confirm the finding that The Number was in breach of Rule 6.5 in caricaturing David Bedford without his permission. Our consequential powers are contained in the Broadcasting Act 1990, section 9(6) to (8), which remain in force for this purpose pursuant to the transitional provisions in the Communications Act 2003, section 406(6) and Schedule 18, paragraph 43(1) to which we have already referred. Section 9(6) to (8) give the Content Board a very wide discretion to direct a licence-holder banning a particular advertisement either entirely, or subject to general, specific, qualified or unqualified conditions, and to any degree. On the other hand, under the Communications Act 2003, section 3(3)(a), one of the principles to which Ofcom is to have regard is that regulatory activities should be targeted only at cases where action is needed. The Number's counsel urged that we should publish our decision, and subsequently hold a further hearing for submissions to be made as to the consequences, but we consider this unnecessary.

16. We had regard to two matters as being particularly relevant to the consequences of our finding of breach. First, after the publicity in The Sun, David Bedford delayed for about 6 months before making a complaint. In context this was a relatively long time, during which The Number committed itself to very substantial expenditure in continuing the advertisements in the same form, and in developing a brand image accordingly; and we repeat that we have not found it necessary to make a finding that The Number had set out specifically to caricature David Bedford.

17. Second, we are not satisfied that David Bedford has necessarily suffered actual financial harm. Bearing very much in mind that under the Communications Act 2003, section 3(3)(a), regulatory activities should be targeted only at cases where action is needed, we consider that a direction to licence-holders that would have the effect of banning the advertisements would be disproportionately damaging to The Number compared with any harm to the feelings or reputation of David Bedford suffered as a result of the advertisements. We considered that any harm suffered by David Bedford as a result of the public believing that he had endorsed the 118 118 service, or indeed in the public being misled on this issue, could be sufficiently addressed by our making it clear publicly that he had not done so. Our conclusions are of course without prejudice to any private law claim that he may have against The Number.

Summary of conclusions

18. On this further and final review we find as follows:

18.1 The 118 118 Runners do caricature David Bedford.

18.2. The Number neither sought nor obtained David Bedford's permission to be caricatured (from which it necessarily follows that David Bedford never endorsed the 118 118 service).

18.3 These facts constitute a breach of Rule 6.5 of the Advertising Standards Code.

18.4. It would be disproportionate to direct that the advertisements are not shown in future, and we consider that the publication of the finding of breach by the Content Board is a sufficient resolution of the matter.

18.5. The Number's appeal against the finding of breach therefore fails, but we make no further direction in relation to the breach.

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