Bet365 High Court appeal over unauthorised use of Danish sports stars images fails

Denmark’s High Court has ordered bet365 to pay DKK4.7m (£529,362) to Danish sports stars over the unauthorised use of their images across social media.

The ruling comes after bet365 appealed the decision made by the Danish Maritime and Commercial Court in May 2023 ordering the operator to pay compensation to the athletes concerned.

The original case last year related to whether bet365 was using images of Danish sports figures, including footballers Christian Eriksen and Kasper Schmeichel, in an editorial scope or as a means of commercial marketing.

It involved 23 Danish sportspeople, including 21 footballers, after bet365 posted photos of the athletes between February 2019 and March 2021 acquired from Getty Images.

In its appeal to the country’s High Court, bet365 argued the original ruling from the Maritime and Commercial Court referred to all of the operator’s posts across Facebook and X (formerly Twitter) as one whole case, when instead each athlete should have claimed on an individual basis given that it “cannot simply be assumed that each of the athletes has the same advertising value”, according to the firm.

All of the named footballers, which include several members of the Danish national team, were represented by the Danish player association, Spillerforeningen.

Badminton player Viktor Axelsen was represented by the Danish Elite Sports Athletes’ Association, and handballer Mikkel Hansen by the Handball Players Association.

Each player limited their claim to DKK50,000 per image.

Additionally, bet365 argued the use of the images on social media did not infringe upon the athletes’ rights given previous case law in the area had not addressed the use of the materials on social media sites.

The operator’s appeal stated: “Especially with regard to the EU Charter, in light of this, there cannot simply be a broad and systematic uniform application of the rules across types of use and different media.

“A concrete assessment and weighing must be carried out, which looks at, among other things, the specific use, as well as how the communication takes place on the medium in question.”

However, in its ruling, the High Court sided with the Maritime and Commercial Court and ordered bet365 to pay the original fine of DKK4.7m.

The High Court’s ruling read: “The High Court agrees with the Maritime and Commercial Court that bet365’s posting with the use of the images and names of the elite athletes must be considered to have a purely marketing purpose.

“Bet365 has argued before the High Court that compensation and remuneration must be determined based on a concrete and individual assessment of each individual posting.

“However, bet365 has not stated anything in detail about how, in the company’s view, compensation and remuneration should, if applicable, be meted out to the individual elite sportspersons.”

Alongside the DKK4.7m payment, bet365 will also be liable for court costs to the total of DKK200,000.

Michael Døi, head of legal at Spillerforeningen, said: “We have made judicial history in Denmark, ensuring that compensation for commercial abuse of IP rights – both image and name – are no longer limited to very small amounts compared to the commercial endorsement deals that players have.”

Michael Sahl Hansen, Spillerforeningen director, added: “One of the most important tasks we have in the association is to secure and defend athletes’ rights.

“We ensured that you cannot simply use athletes’ image rights – images, name, distinguishing marks – without seeking consent beforehand.”

EGR has contacted bet365 for comment.