Analysis of Scenario/Issues

An analysis of the legal position should be included, using legislation and case law to define the
issues involved on both sides.
The English courts were reluctant to recognise specific personality rights for a long period of
time. In the absence of such rights, trademarks were still present. In 2002, however, when the
case of Irvine v Talk sport was being ruled, there appeared certain changes. As the case was
ruled in the favour of Edmund Irvine, the successful Formula 1 driver, the celebrities clinged to
the positive edge in the legislations. The recognition of the image rights was encouraged with the
out of court settlement between the former English Cricket star Ian Botham and the developers
of the Guinness brand Diageo.
The issue was the use of Botham’s images of one of his best performances in 1984 in Guinness’s
advertising campaign. The judgement passed in the Irvine case is sought to have encouraged the
settlement for this case.
As Richard Haynes elaborates, “In copyright law it is the broadcaster that holds the right to
license secondary uses of the footage – in this case Botham." What Haynes wanted to emphasise
is the fact that Botham’s ability to force out of court settlement due to threat of litigation
emphasises stunning change in the legal system with respect to image rights.

Requirement to Have Image Rights

In the digital age, it has become even harder for celebrities to keep their personal lives under
wraps. Given the immense financial advantages attached to the status, people tend to forget that
even though the celebrities are earning their living by being in public eye, they still have a
‘personal’ life of their own. Jonathan Burchell, in relation to Murray v. Big Pictures, aptly
comments, “Although celebrities may have voluntarily circumscribed their own sphere of
privacy, even they have a residual private realm."
Irrespective of the one’s status in the society, one needs to balance his/her public and private life.
It can be said that the right to privacy is a route to human dignity. As Burchell further explains in
his article, “Right to privacy, together with the broader, inherent right to dignity, contributes to
our humanity."
After the Human Rights Act 1998, Douglas v Hello! Ltd. was the very first case in which the
right to privacy was seemingly established from what can be observed from the judgement of the
court of appeal. The judgement read “a powerfully arguable case that [the claimants] have a right
of privacy which English law will today recognise and, where appropriate, protect.
Further, Sedley J’s dictum cleared the ait, “the English law would now protect not only those
people whose trust has been abused but those who simply find themselves subjected to an
unwarranted intrusion into their personal lives. The law no longer needs to construct an artificial
relationship of confidentiality between intruder and victim: it can recognise privacy itself as a
legal principle drawn from the fundamental value of personal autonomy.
Legislations under English Law related to Image Rights
There is no particular legislation relating to image rights under the English law. The idea of
‘image’ or ‘personality’ right was altogether rejected in certain cases in United Kingdom.
The case of Tolley V. Fry which dates back to 1931 was one amongst those cited.
The case revolved around Tolley, a golfer whose cartoon images were used in adverts by Fry
who was a chocolate manufacturer. Tolley filed a case regarding unwanted use of the character
for advertising purposes which might possibly leave a wrong impression on the readers and
thereby defamation. Greer L.J. statement in the case signified a move towards rejection of image
right. He dictated, “Some men and women voluntarily enter profession which by their nature
invite publicity, or public approval or disapproval. It is not unreasonable in their case that they
should submit without complaint to their names and occupations and reputations being
treated...almost as public property."
Another popular case amongst those cited that shows the disapproval of the image rights was that
of Elvis Presley Enterprises Inc v. Sid Shaw Elvisly Yours.

Simon Brown L.J. rejected the claim for ‘character rights’ by stating, “Thirty years earlier,
indeed, when it was contended for as a corollary of passing off law, it had been rejected in
McCulloch v. May. I would continue to reject it. In addressing the critical issue of distinctiveness
there should be no a priori assumption that only a celebrity or his successors may ever market (or
license the marketing of) his own character. Monopolies should not be so readily created.
Goodenough aptly describes the situation, “Plaintiffs lacking the real thing must rely on a
confusing number of analogies and neighbouring doctrines. These analogies and neighbouring
doctrines might include:
 Passing Off
 Trademark infringement
 The Registered Designs Act 1949
 The Trade Descriptions Act 1968
 Copyright
 Defamation
 Malicious falsehood
 Data Protection Act 1998
  British Code of Advertising Practice
 Control of Misleading Advertising Regulations
 The Independent Television commission code of Advertising Standards and Practice

Tort of Passing Off

Goodwill, Damage and Misrepresentation are the three key elements that govern the tort of
passing off. For a case to be adjudged under the tort of passing off, it is necessary that there
should be misrepresentation and damage cause to the claimant’s goodwill.
Irvine v Talksport Ltd. was the landmark case judged with the application of tort of passing off.
It was the very first case in which the judiciary accepted the claim of “false endorsement". The
case was about a radio station advert where the defendants used the image of the Formula 1
driver without his consent. His picture was edited and the mobile phone that he was holding was
replaced by a radio set which had the brand name of the defendant. This was categorised under
‘connection misrepresentation’ by the judges.
In other words, it gave the public a false impression that the successful Formula 1 driver is part
promoting the product. This was believed to have caused harm to the celebrity as it would affect
the celebrity’s goodwill in the sphere of endorsements.

Action for Breach of Confidence

As stated in Coco V AN Clarks (Engineers) Ltd., Breach of confidence is targeted at protecting a
piece of confidential information. A cause of action, thereby, exists when the information is
imparted by the confider to the confidant in circumstance imparting an obligation of confidence
and when there occurs an unauthorised use of the information to the detriment of the confider.
However, it is important enough to note that the obligation of confidence is reliant on the quality
of information as well as on the quality of relationship between the parties.
Even though breach of confidence is been increasingly used to protect privacy, there exists a
difference between confidence and privacy.
As Raymond Wacks puts it, “Privacy can be described as the interest in controlling the gathering
and disclosure of personal information about oneself. At the base of the protection of privacy lies
the individual’s will to decide who will learn what about their personal life. In protection of
privacy, the key element is the nature of information whereas in breach of confidence what
matters is the reposing of trust in order to keep the information confidential.
During the time period when a call for a particular law protecting the privacy of an individual
remained unsuccessful, action of breach of confidence was used to deal with the protection of
privacy as well. However, one major obstacle was the basis of breach of confidence. As
described above, at the bottom of breach of confidence lies the need to show an existing
relationship of confidence in which some confident information has been communicated.
However, the scenario is different as far as protection of privacy is concerned. Breach of
confidence was thus made more tolerant to accommodate and deal with the protection of privacy.

In any case concerning protection of privacy, an obligation of confidence was proved on the
basis that a person has got hold of some information in circumstances in which he/she would
have realised that the information is confidential and it would be claimed as unauthorised use if
the information is leaked without the consent of the person concerned. Meggray J aptly stated in
the Coco v A N Clarks case, “if the circumstances are such that any reasonable man standing in
the shoes of the recipient of information would have realised that upon reasonable grounds the
information was being given to him in confidence." Just the fact that the confidant had enough
sense to realise that the information he/she holds is confidential.
In the Shelley Films Ltd v Rex Features Ltd [1994] EMLR 134, the same dictum was elaborated
in interesting words, “Where a person obtained information by entering private Property despite
signs which indicated that such entry was not permitted.
Douglas V. Hello! Ltd. serves as an example for the action for breach of confidence. As
explained in the earlier parts of the paper, the case pertained to the wedding of the celebrities -
Catherine Zeta Jones and Michael Douglas. For the exclusive rights to publish the photographs
of the wedding of the celebrities, Douglas signed a contract with OK magazine which made a
huge amount of money to the couple. The wedding however was infiltrated by a freelancer who
took certain photographs and successfully sold it to Hello!
Hello! published the photos in one of the issues and sold 1,50,000 more copies than their usual.
When the case was brought in front of House of Lords, the majority’s opinion put forth by Lord
Hoffman.
The opinion regarded that there is a cause of action for the breach of confidence. This was
established on the basis of presence of three key elements:
 The information had to have the quality of confidence;
 It had to be imparted in circumstances of confidence; and
 There had to be an unauthorised use of it to the detriment of the party communicating it.
Given the fact that the photos were not available publicly, there was a quality of confidence. The
condition for circumstances of confidence was fulfilled as every person attending the wedding
was asked not to click any picture and also not to communicate anything to anyone. The leaking
of information or pictures would have meant damage for OK who paid a huge sum to obtain the
exclusive rights. This is what exactly happened. The passing of the confidential information here
was detriment not to confider but to the confidant, which in this case was OK.