Ofcom decision on personality right claim against 118 118 runners

The directory enquiries service, The Number, was criticised on 27 January by the communications regulator Ofcom following its popular advertising campaign for The Number 118 118 and their use of the two gangly, moustachied athletes.

David Bedford, a former world record holder for the 10,000m in 1973, was known as Britain's most colourful athlete. He is remembered for his long moustache, cutaway silky running shorts, white singlet and bright red running socks. Mr. Bedford complained that The Number was trading on his image without payment and falsely representing him as endorsing the 118 118 service as he believes the 118 runners are based on him.

The Ofcom decision follows an appeal made by The Number to the Independent Television Commission, which upheld Mr. Bedford's complaint. This prompted Ofcom to launch a formal investigation to find out if viewers perceived a likeness. Ofcom ruled that the runners of the advertising campaign are indeed meant as a "caricature" of Mr. Bedford. Ofcom stated that the 118 Runners 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. Further, The Number conceded that it had not obtained Mr. Bedford's permission to be caricatured in the advertisements.

Despite the ruling, Ofcom has not banned the advertisements. Ofcom stated that the ruling that the adverts breached the Advertising Code was punishment enough and to ban the adverts completely would be disproportionate. Further, Ofcom does not consider that Mr. Bedford has suffered financially.

Mr. Bedford has instructed solicitors who have written to The Number claiming that they have used his image without permission and have falsely represented him as endorsing the 118 118 service. His solicitors are also claiming there may have been a breach of the advertising code by portraying a living person in an advert without permission.

The Number has rejected the claims, stating that the 118 runners are based on the runner Steve Prefontaine, an American runner who occasionally wore a moustache. Mr. Prefontaine died in 1975 in a car crash. The Number claims that Prefontaine was the inspiration for the two characters in the advert which captures the 1970's runner's look.

In 2003, Eddie Irvine, the Formula One racing driver, successfully sued Talksport radio station for using his image to endorse the radio station by altering his image to show him listening to a radio branded with the Talksport logo. On appeal, the Court of Appeal upheld the finding of passing off and awarded Mr. Irvine £25,000,which was seen as the appropriate figure that he would have received for such an endorsement deal. It remains to be seen whether the Courts will take a similar view with regard to the use of the caricatures in the 118 118 advertisements.

For further information, please contact Susan Barty by telephone on +44 (0) 20 7367 2542 or by email at [email protected], or Lucy Kilshaw by telephone on +44 (0) 20 7367 2044 or by email at [email protected] or Lydia Watts by telephone on +44 (0) 20 7367 2054 or by e-mail at [email protected]