Hot on the heels of our recent article, Unsportsmanlike Conduct, the Danish High Court has just reached a decision in which they awarded 23 well known Danish athletes (including footballers Christian Eriksen and Pernille Harder and badminton player Viktor Axelsen) damages for the infringement of their image rights by Bookmaker Bet365.
Bet365 had used the names and images of professional athletes on its Facebook and Twitter account without consent. To add insult to injury, they then superimposed their own brand over the images.
The main question this posed was whether Bet365's use of the athlete's names and images was purely editorial or whether it was used to market and promote the betting company itself.
The Court maintained that professional athletes are protected against violations of privacy, including a right to protection of reputation and the right to one's own image, cf. Section 3, subsection 1 of the Danish Marketing Act and the European Convention on Human Rights, article 8, paragraph 1. The High Court upheld the Maritime and Commercial Court's decision that each athlete be awarded DKK 50.000 per social media post.
The total compensation awarded amounts to DKK 4.7 million, approximately £533,000.
As we suggested in our previous article, these decisions clearly showcase that not only are sport clubs or team logos being targeted, but also individual athletes. Bet365's inhouse council tried to defend their actions by saying:
"When Bet365 uses sports players as happened here, it gets users engaged. Bet365 wants to interact with consumers who are interested in sports".
The decision clearly indicates that betting companies not only target large international stars but also national stars in a bid to gain more interest in each specific jurisdiction across sports and genders.
Overall, it is problematic that athletes are used on Bet365's social media for marketing, with their names and images being used in conjunction with gambling. These athletes are often role models for persons of all ages, including children, and it is imperative for many that their brand is not associated with controversy, most notably gambling, the continued impact of which continues to be a significant social concern in many countries.
Athletes are typically careful and considerate when promoting brands because it needs to align with their image. The use of the athletes' names and images without consent misleads consumers into thinking that there is a commercial connection between BET365 and the athletes.
The Marketing Act protects all persons right to decide to what extent, in what way and for what purposes that their personal names and images are used commercially. This of course extends to athletes.
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