18. Can I use a celebrity’s name or image without their consent?
Hong Kong does not recognize “personality” or “portrait” rights, but the celebrity may be entitled to take the following actions against you:
- Passing-off: where you make a misrepresentation which induces a third party to believe that your goods, services or business are closely connected to the celebrity or those of the celebrity, and cause damage to the goodwill of the celebrity;
- Infringement of a registered trade mark: where you use a celebrity’s name or image that is a registered trade mark in Hong Kong without the consent of the owner of the trade mark (see section 18 of the Trade Marks Ordinance (Cap.559)). The owner does not have to prove that they have suffered any damage.
- Defamation：where you publish any false statement that injures the reputation of the celebrity. The celebrity would need to prove that you have published the statement which can reasonably be understood to refer to the celebrity, but do not need to prove that you intended to defame or that anyone actually believed the statement to be true.
- Breach of the Personal Data (Privacy) Ordinance (Cap. 486): A person’s name or image is considered as “personal data” if it relates directly or indirectly to a living individual, from which it is practicable to ascertain the identity of the individual from the data, in a form in which access to or processing of the data is practicable (see section 2 of the Personal Data (Privacy) Ordinance). The use of personal data for any new purpose which is not or is unrelated to the purpose for which the data is collected is prohibited unless with the data subject’s express and voluntary consent. The Privacy Commissioner’s Office may issue an enforcement notice directing you to stop the unauthorised use of personal data, take any necessary remedial action, and prevent the breach from recurring. Non-compliance with the enforcement notice is an offence and is liable to a fine or imprisonment.
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