The ad, which featured a bottle of Red Heart Rum together with the words 'Grab a drink and show off those PJ Powers' led to an outcry on social media and a subsequent complaint being lodged with the Advertising Standards Authority (ASA) by her manager, Yvonne Johnston.
The ASA Directorate ruled that the advertisement contravened Clause 11 of Section II of the Code of Advertising Practice, which prohibits advertisers from referring to or portraying living persons without their express, prior permission. Only limited exceptions apply and there is an express prohibition against the “unjustifiable commercial exploitation of the individual’s fame or reputation”.
In this matter, the ASA ruled that the advertisement had indeed unjustifiably exploited PJ Powers’ fame and reputation. It took into account that she had overcome her addiction to alcohol and had made a very public affair of this victory. As such, the association of her name with advertising for alcoholic beverages went directly to a particular sensitivity and the advertisement effectively reduced her battle for sobriety to a marketing stunt to gain commercial traction.
Spar’s advertising agency defended its actions by claiming that the overarching theme of the advertisement had been that of a slumber party and that the wording was meant to be a reference to “Pajama Powers”. It also referred to the advertisement as a “harmless parody”. At the same time, however, it assured the ASA that the advertisement would not be used again and offered to issue a public explanation and apology. The ASA made it clear that it was not buying those defences but also accepted the undertakings offered in resolution of the matter.
The case raises the question of what degree of privacy should be afforded to celebrities who in any event live their lives in the public eye? It is generally accepted that such individuals have less of an expectation of privacy and, particularly in the age of social media, some celebrities must endure thousands of images of themselves being made publicly available on an almost continuous basis. However, our legal and regulatory bodies have tended to step in when a celebrity’s name or image is used for commercial purposes without their consent (such as Basetsana Kumalo’s case against Cycle Lab some years ago) or where, such as in this case, the reference is not neutral and offends against a particular sensitivity.
Advertisers would do well to obtain legal advice before using a reference to, or a portrayal of, any celebrity in their advertisements, or risk incurring the very public wrath of not only the celebrity but also their legion of fans.
For more information contact Kelly Thompson at [email protected] or Dineo Modibedi at [email protected].