When a case was instituted before the Additional Chief Judicial Magistrate of Barabanki against Amitabh Bachan, Madhuri Dixit, and Preity Zinta for endorsing Maggi noodles, it made almost as much news as the ban on the instant noodle brand. These days, celebrities tell us what to eat, drink, drive, and invest in. But when the representation of a celebrity endorser is believed and “acted upon” by a customer who then “suffers prejudice”, does a “cause of action” arise against the celebrity?
In 1972, Hugo Zacchini, an entertainer who performed a “human cannonball” act, was filmed during his 15-second act by a freelance reporter and the clip was broadcast on a news programme. Mr. Zacchini’s claim was that such conduct was an unlawful appropriation of his “professional property”. The Ohio Supreme Court ruled that a “TV station has a privilege to report in its newscasts matters of legitimate public interest which would otherwise be protected by an individual’s right of publicity, unless the actual intent of the TV station was to appropriate the benefit of the publicity for some non-privileged private use, or unless the actual intent was to injure the individual.”
At the Supreme Court of the United States, the majority ruled in favour of Mr. Zacchini. The performer had his own manner and mode of promotion of the event and had a ticketed audience. The broadcast of the show by the news media even as “news clip” without the consent of the performer was prejudicial to his common law right to exploit his skill and talent. Even submissions relying on free speech did not sway the Court.
Such is the supremacy of the right of a celebrity to exploit his or her ‘property in the celebrity status’. So when this property is commercially exploited, are there standards of care and accountability? What the House of Lords said in 1889 about deceit continues to hold true. “No honest mistake, no mistake not prompted by a dishonest intention, is fraud”
The Lords held in Derry v. Peek that to succeed in an action of deceit, the plaintiff had to prove fraud, and to prove fraud, the plaintiff had to establish that “a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.” A person who carelessly makes a false statement but believes that it was substantially true, is not liable for an action of deceit.
What of mere negligence or carelessness? The case of Hanberry v. Hearst before the California Court of Appeals provides the greatest support for holding a celebrity-endorser liable for a negligently-given endorsement. The court applied a duty of care standard to an unprecedented extent by imposing liability on an endorser for the negligent misrepresentation of a product. The Hearst Publishing Company had given a line of shoes its “Good Housekeeping Seal of Approval”. A plaintiff who had slipped and injured herself while wearing a new pair of these shoes, could recover for the defendant’s negligence in putting its seal of approval on defectively designed shoes. The plaintiff had relied on the defendant’s seal believing that the shoes had been examined and tested and implicit in that seal was a representation that it had taken reasonable steps to independently examine the product and had found it satisfactory. The Court also held that because the purpose of the seal was to attract consumers, Hearst could have foreseen that certain consumers would rely on the representation and purchase the shoes. By voluntarily lending its name to the shoes, “Hearst … placed itself in the position where public policy imposes upon it the duty to use ordinary care in the issuance of its seal … so that members of the consuming public who rely on its endorsement are not unreasonably exposed to the risk of harm.”
In light of these decisions, it would seem that the affected consumer may have a case to proceed against celebrity endorsers only if there is adequate proof of (a) reckless misrepresentation or (b) deceit or fraud, on the part of the celebrity. While they may breathe easy about civil claims, celebrities should conduct their checks as to what could potentially land them in trouble. They may even consider an insurance policy to cover the risks associated with endorsements. The risk of being summoned before a magistrate in a possible criminal complaint remains however, and cannot be insured against.
Vijayaraghavan Narasimhan is an advocate practicing at the Madras High Court.