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Hong Kong Law Reform Commission |
9.2 In Dockrell v
Dougall,[395] the plaintiff
argued that a person had a property in his own name per se. The court
rejected this contention and held that an injunction to prevent unauthorized use
of his name could not be granted unless he could show that the defendant had
done something more than make unauthorized use of his name, such as an
interference with his right of property, business or profession by a wrongful
user of his name which had caused him pecuniary loss. In Tolley v J S Fry
and Sons Ltd, a famous amateur golfer sued the defendant for producing a
caricature of him on chocolate wrappers. Greer LJ said:
“I have no hesitation in saying that in my judgment the defendants in publishing the advertisement in question, without first obtaining Mr Tolley’s consent, acted in a manner inconsistent with the decencies of life, and in so doing they were guilty of an act for which there ought to be a legal remedy. But unless a man’s photograph, caricature, or name be published in such a context that the publication can be said to be defamatory within the law of libel, it cannot be made the subject-matter of complaint by action at law”.[396]
The
common law therefore does not recognise any property in a person’s
personality per se, and no injunction will lie for the appropriation of
personality unless the circumstances give rise to defamation or to injury to
property, business or
profession.[397]
9.3 Unauthorized
use of a person’s name or likeness may give rise to an action in
defamation if the defendant depicts a person’s personal appearance or
manners in a ridiculous light[398]
or places the name of a well-known novelist as the author of an inferior
work.[399] However, there may be
appropriation without any injury to a person’s reputation. This may be
the case if an individual’s name or likeness is used in promoting an
article in an advertisement. The result is that individuals appearing in
advertisements are left with no remedy even though their names or likeness are
used in the public realm against their will. Before we examine the pros and
cons of classifying appropriation as a form of actionable invasion of privacy,
we briefly review how France, Germany, Canada and the United States approach the
subject.[400]
9.4 Since the French courts held that the unauthorized use of a
person’s name, image or voice is a “fault” under article 1382
of the Civil Code, any person who has used the name, image or voice of another
without authority is liable to compensate the other for any harm caused by such
use.
9.5 Section 22f of the Act on Copyright in Artistic Creations 1907
creates a right to one’s portrait. The First Civil Division of the
Supreme Court held that:
“The unauthorized publication of a portrait constitutes ... an attack on the freedom of self-determination and the free expression of the personality. The reason why a third party’s arbitrary publication of a portrait is not allowed is that the person portrayed is thereby deprived of his freedom to dispose by his own decision of this interest in his individual sphere.”[401]
9.6 Article
12 of the German Civil Code also provides that a person whose name is used by
another without permission may demand the cessation of such use. The person
affected could also claim damages from any person who wrongfully uses his name
for any loss he suffers.
9.7 The courts in Canada ruled that there is a tort of
“appropriation of personality” at common
law.[402] Rainaldi explains that
the tort protects two distinct interests: the right of a person not to be the
object of publicity for another’s ends without consent; and secondly,
“the right of publicity” which is “an exclusive right in the
celebrity to the publicity value of his
persona”.[403] In contrast
to the approach taken by the courts in the United States, the Canadian courts
held that “appropriation of personality” was the proper cause of
action in both situations even though one may argue that the right of publicity
is more a proprietary than a privacy
interest.[404]
9.8 Appropriation
cases in British Columbia, Manitoba, Newfoundland and Saskatchewan are
actionable under the respective privacy legislation. For instance, the Manitoba
Act provides that privacy may be invaded by:
“the unauthorized use of the name or likeness or voice of that person for the purposes of advertising or promoting the sale of, or any other trading in, any property or services, or for any other purposes of gain to the user if, in the course of the use, that person is identified or identifiable and the user intended to exploit the name or likeness or voice of that person”.[405]
9.9 Similar
provisions can be found in the Newfoundland and Saskatchewan statutes. British
Columbia makes the use of the plaintiff’s name or portrait without consent
a distinct tort which is actionable without proof of
damage.[406]
9.10 The Restatement provides that “one who
appropriates to his own use or benefit the name or likeness of another is
subject to liability to the other for invasion of his
privacy.”[407] To establish
a prima facie claim for invasion of appropriation privacy, the plaintiff has to
prove that the defendant has made some commercial or other use of the
plaintiff’s identity or persona without permission and that the
defendant’s use has caused some damage to the plaintiff’s peace of
mind and dignity.[408] He must
also show that the defendant has appropriated to his own use or benefit
“the reputation, prestige, social or commercial standing, public interest
or other values of the plaintiff’s name or likeness”.
9.11 The draft bill appended to the JUSTICE Report defined
“right of privacy” as including freedom from appropriation of
personality. The Private Members’ Bills introduced by Brian Walden and
William Cash also covered unauthorized appropriation of a person’s name,
identity or likeness for another’s gain. However, the Calcutt Committee
did not find a pressing social need to provide an additional remedy for those,
such as politicians or actors, whose images or voices were appropriated without
their consent for advertising or promotional purposes. They thought that the
law of defamation may avail such a complainant if he could establish an
innuendo.[409]
9.12 Some writers treat appropriation of personality as a privacy
matter. Beaney, for instance, defines privacy as including the freedom of an
individual to determine the extent to which another individual may obtain or
make use of his name, likeness, or other indicia of
identity.[410] Westin defines
privacy as the “claim of individuals to determine for themselves when, how
and to what extent information about them is communicated to
others”.[411] We note that
appropriation of a person’s name or likeness does not necessarily
communicate information about a person. It does not necessarily involve
disclosure of private facts or falsity in the sense of
defamation.
9.13 Other writers have argued that the interests protected
by an appropriation tort are not privacy interests; the right to the commercial
use of one’s name or likeness is a proprietary right and the person whose
identity has been appropriated should look to the laws of passing off and unjust
enrichment for remedies.[412]
Harry Kalven, for example, notes that the rationale for the protection afforded
by the tort “is the straight-forward one of preventing unjust enrichment
by the theft of good will. No social purpose is served by having the defendant
get for free some aspect of the plaintiff that would have market value and for
which he would normally
pay.”[413] Raymond Wacks
also holds the view that the tort is essentially a proprietary wrong at the
heart of which lies the unjust enrichment which the defendant obtains by his
gratuitous use of the plaintiff’s
identity.[414] Even the American
Restatement admits that the right created by the appropriation tort is
“in the nature of a property right, for the exercise of which an exclusive
licence may be given to a third person, which will entitle the licensee to
maintain an action to protect
it.”[415]
9.14 However,
Edward Bloustein expresses the view that everyone has a right to prevent the
commercial exploitation of his personality only because it is an affront to
human dignity:
“No man wants to be ‘used’ by another against his will, and it is for this reason that commercial use of a personal photograph is obnoxious. Use of a photograph for trade purposes turns a man into a commodity and makes him serve the economic needs and interest of others. In a community at all sensitive to the commercialization of human values, it is degrading to thus make a man part of commerce against his will.”[416]
9.15 Tim
Frazer also supports the view that appropriation is an aspect of
privacy:
“Privacy includes the interest a person has in determining the use to which his or her personality will be put; it is an aspect of a person’s interest in determining the social sphere or context in which he or she wishes to appear.
The injury caused by appropriation of personality - humiliation, bruised dignity, annoyance, shame, etc., can be satisfactorily explained on the basis of an invasion of privacy, as defined above. What is complained of is that the person’s control over the position he or she takes in relation to others has been removed. An uncontrolled change in position occurs when the person becomes more ‘public’, and therefore less ‘private’. ... [All cases of appropriation of personality] involve loss of control over the degree of ‘publicity’ enjoyed or endured by the individuals”.[417]
9.16 Frazer
therefore argues that the concept of privacy may be used to explain the injury
suffered by an ordinary individual when a photograph of him sunbathing on a
public beach was published without his consent in an advertisement. However,
the injury suffered by a well-known person requires different considerations.
Frazer explains that “Privacy is not relevant to a person who
seeks to enter into, and to remain prominent in, the public sphere in
so far as the use made of the personality is consistent with the nature of
the sphere chosen by the person concerned.” Thus, privacy is not relevant
when the photograph of a famous sportsman appears without his consent on an
advertisement for sportswear. The complaint here is not explicable on the basis
of loss of control over entry into the public sphere. The complaint is that he
has lost control over the timing and nature of the advertisement or the identity
of the products associated with his name. The injury is not hurt feelings or
bruised dignity but “the loss of the fee he would normally be able to
command for such use of his image and any diminution in his future earning
capacity by reason of such unauthorized
use.”[418] The situation is
different if a photograph of the sportsman is used in an advertisement for
pharmaceuticals. The publicity may cause him as much injury to his feelings and
dignity as other ordinary individuals. Even a public figure should be protected
from such publicity.
9.17 In the United States, the distinction between
appropriations involving injured feelings and those involving economic interest
is expressed as the difference between a right of privacy and a right of
publicity. Most American courts now recognise the distinction between the
traditional human dignity interest protected by the appropriation type of
privacy and the commercial property interest in human identity protected by the
right of publicity.[419] Thomas
McCarthy points out that the former is founded upon psychic damage but the
latter upon traditional notions of theft of commercial property:
“Invasion of the right of privacy by commercial appropriation is triggered by an injury to human feelings. Mental trauma from loss of self-esteem forms the basis for this tort. ... Commercial use of some aspect of a person’s identity without permission is in effect an involuntary placing of a person on exhibition for someone else’s financial benefit. ... On the other hand, infringement of the Right of Publicity by commercial appropriation is triggered by an injury to a commercial proprietary interest. Plaintiff’s claim is not founded upon emotive or reputational damage but upon the unauthorized taking of a valuable commercial property right which defendant has benefited from without compensation to the owner.”[420]
“The appropriation branch of the Right of Privacy gives control over another’s commercial use of one’s identity only insofar as one can establish some bruised feelings. The interest protected is purely one of freedom from a particular kind of infliction of mental distress. The Right of Publicity takes the next logical step and makes the right of control over commercial use of one’s identity complete by giving to each person a complete right to control all unpermitted uses of one’s personality, that is, the right to prevent commercial use regardless of the infliction of mental distress.”[421]
In
summary, the appropriation form of privacy protects an individual who does not
desire publicity in any form but the right of publicity protects the
individual’s claim to exploit himself the publicity value of his name or
likeness.
9.18 The Irish Law Reform Commission acknowledges that actions
for unauthorized use of name or likeness have a dual character:
“where the person does not consent to such use of the photograph,
she or he may feel offended or embarrassed simply because they dislike publicity
or because they dislike being associated with the product. In such cases, the
protected interest is not necessarily proprietary or commercial. It is human
dignity. ... It seems to us therefore that, in some cases, the interest
protected by these causes of action is indeed privacy. In other cases, however,
perhaps the majority of cases, the interest is essentially
commercial.”[422]
9.19 We
agree that using a person’s name or likeness for commercial gain without
permission is objectionable. Recently, an athlete won a gold medal for Hong
Kong in the Olympic Games. Many companies presented her with gifts in
recognition of her achievement at the Olympic Games. Some of the pictures taken
at the presentation ceremonies were later used in advertisements without her
permission. The pictures implied that the article promoted in the advertisement
had her full blessing. By publishing the photographs in the advertisements, the
companies had taken unfair advantage of her fame for their own advantage. Yet
she had no legal remedies under existing law unless she could establish that the
publications were defamatory or the companies had breached the use limitation
principle under the Personal Data (Privacy) Ordinance. A more recent example
concerns a Mr Or who succeeded in “driving over” the Yellow River in
China in a motor vehicle. Mr Or alleged that the company which manufactured the
vehicle used by him had used his name in its advertisement without his consent.
It was reported that Mr Or was aggrieved by what the vehicle company had
done.[423]
9.20 The
American Restatement seeks to illustrate the appropriation tort by the
following examples:
(a) A is the President of the United States. B forms and operates a corporation, engaged in the business of insurance, under the name of A Insurance Company. This is an invasion of privacy.
(b) A, a private detective, seeking to obtain information as to the relations of B’s wife with C, impersonates B, and so induces others to disclose to him confidential information that they would not otherwise have disclosed. A has invaded B’s privacy.
(c) A, who has been B’s mistress, poses as his common law wife, calling herself Mrs. B. A has invaded the privacy of B, and also of his wife, Mrs. B.
(d) Without the consent of A, B signs A’s name to a telegram that he sends to the governor of the state, urging the governor to veto a bill that B finds objectionable. This is an invasion of A’s privacy.
(e) Without the consent of A, B files suit in the name of A as plaintiff, seeking a judgment advantageous to B. This is an invasion of A’s privacy.
9.21 Although
we agree that appropriation without permission is objectionable, we are not
satisfied that the examples given in the Restatement illustrate that such
wrongful conduct falls under the rubric of privacy:
(i) Example (a) is not a privacy issue. Any confusion which might arise from the use of a person’s name as the name of a company should be dealt with by company law.
(ii) Example (b) is not a privacy issue either. The unauthorized disclosure of information imparted in confidence should be governed by the law of breach of confidence.
(iii) As regards example (c), B’s privacy was not invaded. A person may call himself whatever he likes unless doing so constitutes an offence of personation.
(iv) Example (d) involves fraud and false representation.
(v) In example (e), filing a suit in another’s name in order to obtain a judgment to his advantage is a case of obtaining property or a pecuniary advantage by deception which is punishable under the Theft Ordinance.
9.22 Appropriation
may be for a political or commercial purpose. As for the use of a
person’s name to support candidature for public office, the Corrupt and
Illegal Practices Ordinance (Cap 288) already makes it an offence to use or
publish the name of a person without his prior consent so as to infer that he
supports a candidate of an
election.[424] As regards
appropriation for commercial gain, it normally involves a portrayal of a
well-known figure in an advertisement suggesting that he commends the product
promoted therein to the whole world. A picture showing a public figure using a
particular brand of furniture conveys a message that he is satisfied with the
quality of the furniture and that he is pleased to commend it to others.
However the truth might be that he does not have a high opinion of the
furniture, or that even if he is satisfied with its quality, he does not want
his opinion publicised.
9.23 We agree that unauthorized use of a
person’s name for commercial gain is immoral and should be condemned. It
damages a person’s public image as well as his commercial interest. But
an appropriation tort does not require the invasion of something secret,
secluded or private pertaining to the individual. Besides, the protection of
commercial interests is something outside the remit of our Privacy reference.
We believe that the problems associated with appropriation should be addressed
by the law of contract or advertising law, perhaps supplemented by
self-regulatory measures adopted by the advertising industry.
9.24 At present neither the Television Ordinance (Cap
52)[425] nor the Codes of Practice
on Advertising Standards issued under the Broadcasting Authority Ordinance (Cap
391) contain any provisions on privacy matters. The Codes issued by the
Broadcasting Authority simply state the general principle that all television
advertising should be “legal, clean, honest and truthful”. As for
the print media, except for certain
exceptions,[426] there are no
specific controls over the advertising content appearing in newspapers and
magazines.
9.25 Print and cinema advertising in the United Kingdom are
regulated by the British Codes of Advertising and Sales
Promotion.[427] The Codes are
industry codes and apply to all non-broadcast advertising and sales promotion in
the United Kingdom. Complaints about breaches are investigated and adjudicated
by the Advertising Standards
Authority.[428] Rule 13 of the
British Codes provides:
“Advertising Code - Protection of privacy
13.1 Advertisers are urged to obtain written permission in advance if they portray or refer to individuals or their identifiable possessions in any advertisement. Exceptions include most crowd scenes, portraying anyone who is the subject of the book or film being advertised and depicting property in general outdoor locations.
13.2 Advertisers who have not obtained prior permission from entertainers, politicians, sportsmen and others whose work gives them a high public profile should ensure that they are not portrayed in an offensive or adverse way. Advertisements should not claim or imply an endorsement where none exists.
13.3 Prior permission may not be needed when the advertisement contains nothing that is inconsistent with the position or views of the person featured. ...”
9.26 As
for the broadcasting media in the United Kingdom, the Code of Advertising
Standards and Practice issued by the Independent Television
Commission[429] contains a
separate paragraph on the unauthorized portrayal of individuals in
advertisements. Rule 15 of the Code reads:
“Protection of Privacy and Exploitation of the Individual
“Individual living persons must not be portrayed or referred to in advertisements without their permission except in circumstances approved by the Commission. A general exception is in advertisements for books, films, and particular editions of radio or television programmes, newspapers, magazines, etc, which feature the person referred to in the advertisement, provided the reference or portrayal is neither offensive nor defamatory. In the case of generic advertising for news media, licensees may also waive the requirement for prior permission if it seems to them reasonable to expect that the individual concerned would not have reason to object. Such generic advertising must, however, be withdrawn immediately if individuals portrayed without their permission do object.”
9.27 We
note that the Code of Advertising Standards issued by the Association of
Accredited Advertising Agents of Hong Kong imposes restrictions on the use of
pictures of individuals in advertisements which suggest that the individuals
endorse the products or services
advertised.[430] Any member of
the Association which is in breach of the Code may be disciplined in accordance
with the Rules of the Association. Although such self-regulatory measures are
commendable, it would be preferable if similar provisions could be incorporated
into the Codes of Practice on Advertising Standards issued under the
Broadcasting Authority Ordinance.
9.28 Since the Broadcasting Authority
does not have jurisdiction over the print media, the Privacy Commissioner may
wish to issue a Code of Practice on the use of personal data in advertisements
using the relevant provisions in the British Codes of Advertising and Sales
Promotion as a starting point. Any code issued by the Privacy Commissioner
would apply to both the print and broadcasting media.
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Recommendation 5 We recommend that the Broadcasting Authority should give consideration to adopting in their Codes of Practice on Advertising Standards provisions governing the use of personal data in advertisements broadcast by the licensed television and sound broadcasters in Hong Kong. |
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Recommendation 6 We recommend that the Privacy Commissioner for Personal Data should give consideration to issuing a code of practice on the use of personal data in advertising materials for the practical guidance of advertisers, advertising agents and the general public. |
9.29 We conclude that there is no real privacy issue in an
unauthorized use of a person’s name or likeness whether for commercial
gain or not. Even if there is, what is left unprotected is a narrow band of
privacy concerns. The aggrieved individual may also seek compensation under the
Personal Data (Privacy) Ordinance if his likeness was recorded and then used for
an unauthorized purpose. Furthermore, existing law may be relied upon to
protect the privacy concerns arising from appropriation. For instance, the law
of contract might be relied upon to show that the use is governed by an implied
contract between the parties. Where the wrongdoer has made a gain acquired by a
tort or breach of contract, the plaintiff may seek restitutionary remedies
pursuant to the law of restitution on the basis of unjust enrichment. The
individual may also look to the laws of breach of confidence, infringement of
copyright, defamation or passing off for remedies in appropriate circumstances.
Although we agree that the law should provide a remedy for unauthorized use of
name or likeness, the mischief is only of marginal relevance to the privacy
interests with which we are most concerned. We are of the opinion that any
privacy interest which may exist in appropriation cases is not of such
significance as to merit the creation of a new privacy tort.
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Recommendation 7 We conclude that it is not necessary to create a statutory tort of invasion of privacy by appropriation of a person’s name or likeness. |
[395] (1899) 80 LT 556.
[396] [1930] 1 KB 467, at 478.
[397] T Frazer, “Appropriation of Personality - A New Tort?” (1983) 99 LQR 281.
[398] Dunlop Rubber Co v Dunlop [1921] 1 AC 367.
[399] Ridge v The English Illustrated Magazine (1913) 29 TLR 592.
[400] Clause 23 of the Unfair Publication Bill drafted by the Australian Law Reform Commission would create a right of action in favour of a person whose name, identity or likeness is appropriated by another. A person would be liable under this clause “if he, with intent to exploit for his own benefit, the name, identity, reputation or likeness of that other person and without the consent of that other person, publishes matter containing the name, identity or likeness of that other person- (a) in advertising or promoting the sale, leasing or use of property or the supply of services; or (b) for the purpose of supporting candidature for office.” See Law Reform Commission of Australia (1979), para 250.
[401] Quoted in Law Reform Commission of Ireland, para 9.65.
[402] This tort is actionable where “the defendant has appropriated some feature of the plaintiff’s life or personality, such as his face, his name or his reputation, and made use of it improperly, ie, without permission, for the purpose of advancing the defendant’s own economic interests.” See G H L Fridman, 194 - 197.
[403] L D Rainaldi, vol 3, p 24-14. See also R Howell, “The Common Law Appropriation of Personality Tort” (1986) 2 IPJ 149 at 160.
[404] Athans v Canadian Adventure Camps Ltd (1977) 17 OR (2d) 425, 80 DLR (3d) 583.
[405] Section 3(c).
[406] British Columbia Act, section 3.
[407] Restatement 2d, Torts, § 652C. See “Invasion of Privacy by Use of Plaintiff’s Name or Likeness for Nonadvertising Purposes” 30 ALR3d 203; “Invasion of Privacy by use of Plaintiff’s Name or Likeness in Advertising” 23 ALR3d 865.
[408] Apart from statutes in some states, the tort is not limited to commercial appropriation. The defendant may be liable even though the use is not a commercial one and the benefit sought to be obtained is not a pecuniary benefit.
[409] Para 12.8.
[410] Beaney, “The Right to Privacy and American Law” (1966) 31 Law & Contemp Probs 253, 254.
[411] A F Westin, Privacy and Freedom (London: Bodley Head, 1967), p 7.
[412] In Erven Warnick v Townend [1979] FSR 397, Lord Diplock defined the necessary elements of a passing off action as follows: “(1) a misrepresentation (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timet action) will probably do so.” A strict approach to the last two elements would include within the category of “trader” only those persons who have a business in the licensing of their personality for business purposes: Frazer, “Appropriation of Personality - A New Tort?” (1983) 99 LQR 281 at 287. An action in passing off was dismissed in McCulloch v May [1947] 2 All ER 845 on the grounds that there was no common field of activity between the plaintiff and the defendant. Cf Henderson v Radio Corporation [1969] RPC 218. See also Wilson Development Co v Pro Taifong Co Ltd [1991] 1 HKC 1.
[413] H Kalven, “Privacy in tort law - Were Warren and Brandeis wrong?” (1966) 31 Law & Contemp Prob 326, 331.
[414] R Wacks, The Protection of Privacy (London: Sweet & Maxwell, 1980), p 18.
[415] Restatement 2d, Torts, § 652C, Comment a.
[416] E J Bloustein, at 988.
[417] T Frazer, 296 - 297.
[418] Above.
[419] See J T McCarthy, The Rights of Publicity and Privacy (Clark Boardman Callaghan, 1994), sections 1.6 - 1.11. T L Yang also makes a distinction between these two forms of appropriation: “One form of appropriation is responsible for the mental distress at seeing the exhibition of one’s name or picture to the gain of some strangers; the other form of appropriation is objected to because of the pecuniary loss of the plaintiff, usually a ‘celebrity’ in the entertainment world, as a result of the unauthorized exploitation of his name or likeness. The former relates to emotional distress and therefore may truthfully be called an invasion of privacy. The latter relates to a ‘pocket-book sensitivity’ and on analysis is an invasion of one’s right to publicity.” T L Yang, “Privacy: A Comparative Study of English and American Law” (1966) 15 ICLQ 175, at 178.
[420] J T McCarthy, § 5.8[C], p 5-69.
[421] J T McCarthy, § 5.8[F], p 5-76.
[422] Paras 9.69 - 9.70.
[423] Ming Pao, 23 July 1997.
[424] Section 17.
[425] See the Television (Advertising) Regulation (Cap 52).
[426] Eg Undesirable Medical Advertisements Ordinance (Cap 231).
[427] The index to the Codes can be found at <http://www.asa.org.uk/bcasp/>.
[428] The Advertising Standards Authority is independent of the Government and the advertising business and was established to monitor the self-regulatory system set up by the industry. Para 68.36 of the Codes explains the sanctions for breaches: “Under the Control of Misleading Advertisements Regulations 1988, if a misleading advertisement or promotion continues to appear after the [ASA] Council has ruled against it, the ASA can refer the matter to the Director General of Fair Trading who can seek an undertaking from anyone responsible for commissioning, preparing or disseminating it that it will be discontinued. If this is not given or is not honoured, the OFT can seek an injunction from the court to prevent its further appearance.”
[429] (Autumn 1995), at <http://ourworld.compuserve.com/homepages/almad/itccode.htm>. The Code gives effect to the requirements relating to television advertising in the EC Directive on Television Broadcasting (85/552/EEC) and the 1989 Council of Europe Convention on Transfrontier Television. See also The Control of Misleading Advertisements Regulations 1988 (UK) (SI 1988/915) which seeks to implement the Council Directive 84/450/EEC (the misleading advertising directive). Members of the EEC were required by the directive to provide arrangements enabling any person, regarded under national law as having a legitimate interest in prohibiting misleading advertising, to initiate legal proceedings against such advertising or to bring it before an administrative authority.
[430] The Code can be found in: The Association of Accredited Advertising Agents of Hong Kong, Standards of Practice (February, 1997). Principle (B)(i) of the Code provides: “No advertisement shall contain any descriptions, claims, or illustrations which directly or by implication mislead about the product or service advertised” particularly with regard to, inter alia, the “approval by any person or conformity with a type approved by any person”. Principle (D)(ii) further provides: “Where an identifiable picture of a person is used in conjunction with a quotation commending an advertised product, the person shown should be the person whose words are quoted.”