Australian media entrepreneur and Australian of the Year recipient Ita Buttrose is suing an aged care business for reputational damage, as the business allegedly used a picture of her without permission to endorse its own brand.
Buttrose is suing The Senior’s Choice and its director, Andrew Philpot, alleging the in-home aged care provider misled and deceived consumers, breached the Competition and Consumer Act, and infringed copyright.
Philpot confirmed to SmartCompany the action taken by Buttrose against The Senior’s Choice, but he denied ever using an image of Buttrose.
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“Firstly, they’re claiming the photograph was used on the website homepage on April 17, but none of us saw it and we’re not aware of it,” he says.
Buttrose is alleging Philpot requested information from her agents at the Saxton Speakers Bureau about the terms and conditions of her endorsement in September last year, advising him of a minimum $75,000 fee.
Buttrose is arguing that The Senior’s Choice illegally used an ABC interview with Buttrose, along with her image, on its website and SEEK page to promote and endorse its business.
Buttrose is seeking damages for the alleged loss to her reputation.
“The loss is the loss of the sponsorship fee that should have been paid, if approval had been given… for an endorsement,” the court documents claim, according to The Sydney Morning Herald.
“Further, the loss is the loss of an opportunity to sponsor or endorse products offered by any major company that offers services associated with senior citizens of Australia.”
The statement of claim allegedly states Buttrose suffered damage to her “very substantial and reputable” public standing.
In a statement to SmartCompany Buttrose said she was “concerned to ensure that the welfare and safety of seniors in Australia is protected”.
“I have had no choice than to issue these proceedings given that demands for rectification and publication of notices confirming that I have never provided any endorsement to the company have gone unanswered,” she says.
When researching the story, SmartCompany uncovered a Facebook post on the wall of a group claiming to be “for people who are sick of the sexism dished out to women in Australia”, complaining about an advertisement on The Senior’s Choice website featuring Buttrose.
The advertisement in question is no longer present on the company’s site. Philpot says the people in the group targeted the wrong business.
“Our lawyer bought it to our attention and I’m confident in saying they have the wrong company… if you look at our homepage our ad is nothing like the one they’re talking about.”
“I’m not sure what that’s all about,” he says.
Hall and Wilcox partner Ben Hamilton told SmartCompany cases such as this fall under the Competition and Consumer Act because using someone’s image without their permission is grounds for misleading and deceptive conduct claims.
“There are also specific prohibitions against misleading representations about sponsorship, approval or endorsement.
“Using the image of a celebrity conveys to consumers that the celebrity has endorsed, approved or is affiliated with a company. Celebrities are able to use their images to their advantage and this is why these types of claim are often brought,” he says.
Hamilton says in terms of the success of the claim, it’s largely dependent on the “overall perception” of consumers.
“The consumers need to be aware of whom Ita is and her reputation, which is well-established, and be under the assumption she approved the use of her image,” he says.
“For businesses, it’s just a matter of being aware of the breadth of applicability of Australian Consumer Law and general compliance.”
Hamilton says there have been a number of cases similar to this one in the past involving disputes over using celebrity images.
“The courts recognise celebrities can benefit from endorsing and licencing their image,” he says.