eddie mcguire

Brands often use celebrities to help sell their stuff. Ten’s Carrie Bickmore is often spruiking Garnier BB cream in TV ads, her network colleague Lisa Wilkinson is the face of Nutra-Life, The Bachelorette’s Georgia Love has her face on Palmer’s moisturisers, and reality TV star and singer Casey Donovan is the latest in a line-up of washed-up celebs to appear in Coles ads.

And that’s because it works.

So it’s not terribly surprising that there are brands out there that try to get away with attaching celebrities’ names and faces to their products without ever actually getting an endorsement.

In a case that we probably would’ve never noticed had the subject himself not brought it up, Eddie McGuire was used in a fake GQ article posted on Facebook to endorse a natural erectile dysfunction supplement last month. He used his Triple M program to talk about suing Facebook (using, of course, program sponsors Gordon Legal), and got ribbed about it on his other show, The Footy Show. 

McGuire’s lawyers didn’t respond to Crikey’s request for comment, but he said repeatedly on his program that using his likeness was both illegal and defamatory.

Associate Professor Jason Bosland from the Melbourne Law School said that using someone’s image without their permission to sell a product could be considered defamatory, but also falls under false or misleading advertising under consumer law. He said the McGuire case was “borderline”.

“It depends on whether the ordinary, reasonable reader would think less of Eddie McGuire in light of this association with him. There is also a ridicule test under defamation law, which is less well-known. The question is whether or not it’s a trivial degree of ridicule,” Bosland said.

McGuire has said he’s suing Facebook, which hasn’t commented, and if he were to try to go after the person that created the post, it may be even a little trickier to win.

“When something is available on the internet, publication is where the harm occurs,” Bosland said. “In Australian courts we have jurisdiction, but the issue would be whether or not you could get a foreign defendant to submit to the jurisdiction. If it’s a big company based overseas, [suing] can be highly successful if they have got assets in Australia or they’re trading here … The fact that they’re located overseas isn’t an impediment to sue.”

But then, there’s also the question of what the person suing is actually trying to do with the courts. David Marshall, an expert on public persona and celebrity studies said there was a threshold for celebrities at which they decide on whether these issues are worth drawing more attention to.

“[McGuire] obviously found it offensive,” Marshall said. “If we take him at face value, he thought it was crossing a lot of boundaries. But that extra attention is not necessarily a bad thing for Eddie McGuire. I think the last time I talked about Eddie McGuire was maybe four years ago. He’s described his own values, and he’s crossed boundaries into media sources that don’t necessarily talk about him.”

eddie mcguire

“The brand ambassador structure is [also] very important to the idea of a celebrity,” Marshall said. “If Eddie McGuire’s public identity is his masculinity, he could say that this is threatening to his brand identity.”

It’s a similar situation for other recent Aussie cases — Fifi Box, Lisa Wilkinson, Ricki-Lee Coulter and Rebel Wilson have all had their images used to sell products without their permission in the last few years.

The strategy was reported by NBC almost two years ago, clocking articles that appeared to be from Entertainment Tonight and CNN. The Federal Trade Commission in the US has settled a handful of cases with companies producing these ads, in which they make payments and agree to “permanently halt” their operations.

In Australia, the Australian Competition and Consumer Commission wouldn’t comment other than to confirm that under Australian law it is illegal for businesses to engage in misleading or deceptive conduct, including claiming to have testimonials from people when they didn’t.

As to whether McGuire’s case will be successful, it depends on what his goal is. “If it’s something you really don’t want to be heard, then going down path of defamation probably isn’t the ideal approach,” Bosland said.

“In most cases it will draw more attention to the allegations. But it depends on why you’re suing. Some people might use the law for brand management, or to send a signal. If you become known as someone who’s willing to sue it’s much less likely that other publishers are going to publish similar things about you.”