England and Wales High Court (Queen's Bench Division) Decisions

O'Shea v. MGN Ltd and others [2001] EWHC QB 425 (4th May, 2001)

Case No: JS/01/0046 & 0047 (Claim no HQ. 0100035)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 4 May 2001 (handed down)

B e f o r e :
THE HONOURABLE MR JUSTICE MORLAND

Mr Geoffrey Shaw Q.C. (instructed by Peter Carter Ruck & Partners for the Claimants)
Mr Mark Warby (instructed by Davenport Lyons for the First Defendants and Henri Brandman & Co for the Second Defendants)

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic

The Hon. Mr Justice Morland.

1. In July and August 2000 in five consecutive issues of the Sunday Mirror the first defendants published the second defendants’ pornographic advertisement headlined:-

"Free internet access for Adults Only. The world’s first free adult I.S.P."

2. Examples of the pornographic advertisement are to found on pages 10-13 of the Court Bundle.
3. The advertisement contains pictures of several women in particular a photograph of a woman who, it is alleged, is the "look alike" or "spit and image" of the claimant. She is holding a telephone to her ear and saying

"See me now at "www.....internet.com if you have access to the net, join on line now"

4. The photograph is that of Miss E taken some years ago and published with her permission. Miss E is a well-known glamour model who allows her photograph to appear in sex industry advertisements. Miss E’s statement with exhibits is to be found on pages 169 to 197 of the Court Bundle.
5. The photograph in the advertisement did not name or otherwise identify the woman portrayed but, it is alleged, is identical to the claimant whose true photograph is at page 106.
6. It is alleged in the Particulars of Claim (See page 17) that those persons who read the words together with the photograph and who knew or were acquainted with the claimant would reasonably have understood them to refer to her.
7. She identifies family members and a family friend who so identified her with the photograph.
8. The pleaded defamatory meaning is that the claimant "was appearing or performing on a highly pornographic website containing material of an explicit, indecent and lewd nature and had shamelessly agreed to promote this website and her own appearance on it in a national newspaper"
9. The claimant is a respectable young woman aged twenty four. Her statement is at page 77.
10. If the photograph had been a true photograph of the claimant, her claim in defamation would undoubtedly be successful.
11. However Mr Warby first submitted that the claimant has no realistic prospect of establishing reference. In my judgment this submission fails.
12. The test in law is objective. Would the ordinary sensible reader of the advertisement having regard to the words complained of and the photograph in the context of the advertisement as a whole and clothed with the special knowledge of the publishees, that is that the photograph was the "spit and image" of the claimant, have reasonably concluded that the woman speaking in to the telephone was the claimant.
13. I am unable to conclude that a jury properly directed could not reasonably decide that the defamatory message complained of referred to the claimant.
14. Mr Warby referred me to the statements of the pleaded identifying witnesses(pages 82-91). I accept that some them appear to be secondary publishees. However in my judgment it is clearly foreseeable that a "spit and image" photograph apparently of the claimant would be shown around the family.
15. The evidence of the publishees is of limited relevance. On the issue of reference it is only relevant to clothe the "ordinary sensible reader" with knowledge, that is that the photograph is the "spit and image" or "look alike" of the claimant. It is totally irrelevant to the application of the objective test for reference.
16. The fact that Aunt T says "I just could not believe it where I saw what I believed and still believe to be the claimant’s photograph" is irrelevant to reference and the alleged defamatory message which must be objectively determined (See per Goddard L.J. in Hough .v. London Express [1940] 1.K.B. 507 at p.516).
17. However the evidence of the publishees could become very relevant on the issue of damages having regard to the limited extent of publication to people who could identify the claimant as the victim of the libel. If they did not believe the defamatory imputation it would lessen the injury to the claimant’s reputation.
18. So far as English Law is concerned this is the first case where a claimant has sought damages for libel in respect of a defamatory message allegedly referring to the claimant as the result of identification from a photograph of another person which was the "look alike" or "spit and image" of the claimant.
19. The researches of Counsel have only unearthed two similar cases world-wide occurring in a century but in both those cases the plaintiff was alleging mistakenly that the photograph published was a photograph of the plaintiff when in fact it was a true photograph of someone else. In this case the claimant accepts that the photograph is the true photograph of Miss E but asserts that it is a "look alike" of herself.
20. Both earlier claims failed. In Squire .v. Press Pub Co [1901] 68 New York Supplement page 1028 the defendants published in their newspaper an account of the marriage of one Louise Cleary with Eugene Cowles together with a picture said to be of "Mrs Louise Cleary Cowles". It was alleged that this was a picture of the plaintiff and that the libel consisted of publishing her picture as that of the woman who was married to Cowles. The jury found for the defendants. In Rwabugahya .v. East African Newspapers [1968] East African Reports 576 the plaintiff, a doctor, alleged that his photograph had been used in an advertisement for a deodorant which would have made him in breach of his professional etiquette. Sheridan J. in dismissing his claim said at page 577F:-

"I accept it that a person can be depicted by a photograph as by a caricature or a verbal description, but counsel have not been able to refer me to a precedent where a plaintiff has succeeded in respect of an unnamed photograph of another man being used for advertisement purposes. In the absence of an authority I should be reluctant to hold that such was the law"

21. The present law is conveniently stated in the Faulks Report of 1975 at paragraph 121:-

"121. In order to succeed in a libel action the plaintiff must prove that the words referred to him. The criterion is the same as for the meaning of words i.e. would the ordinary sensible reader (or viewer or listener) understand the words as referring to the plaintiff having regard to their terms and (in appropriate cases) any special facts relevant to identification proved to have been known to a class of readers. The intention of the publisher is completely irrelevant. Thus, for example, if a work of fiction is understood to refer to the plaintiff the plaintiff will be entitled to succeed, and it is completely irrelevant that the author had no intention of referring to the plaintiff, and may not even have known of his existence.

122. We recognise that in cases where this situation occurs the rule may work hardship on the defendant. Under section 4 of the Defamation Act 1952 the defendant can establish a valid defence if he proves that he published the words innocently and has made an offer of amends. Nevertheless there will be many cases where he will be unable to bring himself within this defence as at present framed. After a very careful consideration we have come to the conclusion that in principle the rule in Hulton v. Jones should stand"

22. Mr Warby has submitted that the imposition of liability in this case would involve an extension of existing law to a new and distinct factual situation not covered by existing authority and that the principle of strict liability for inadvertent and blameless reference to a claimant should not apply where the allegedly identifying material consisted only of a photograph not of the claimant but of another person published as part of a lawful business particularly because a decision in favour of the claimant would be an unjustified interference with freedom of expression contrary to article 10 of the Convention.
23. Strict liability for "unintentional defamation" was firmly established by the House of Lords in Hulton v. Jones [1910] A.C.20.

Lord Loreburn L.C. said at p.23:-

"Libel is a tortious act. What does the tort consist in? It consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it. A person charged with libel cannot defend himself by showng that he intends in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. He has none the less imputed somethig disgraceful and has none the less injured the plaintiff. A man in good faith may publish a libel believing it to be true, and it may be found by the jury that he acted in good faith believing it to be true and reasonably believing it to be true, but that in fact the statement was false. Under those circumstances he has no defence to the action, however excellent his intention. If the intention of the writer be immaterial in considering whether the matter written is defamatory, I do not see why it need be relevant in considering whether it is defamatory of the plaintiff. The writing, according to the old form must, be malicious, and it must be of and concerning the plaintif. Just as the defendant could not excuse himself from malice by proving that he wrote it in the most benevolent spirit, so he cannot show that the libel was not of and concerning the plaintiff by proving that he never heard of the plaintiff. His intention in both respects equally is inferred from what he did. His remedy is to abstain from defamatory words"

24. Lord Shaw said at p.26

"In the publication of matter of libellous character, that is matter which would be libellous if applying to an actual person, the responsibility is as follows: In the first place there is responsibility for the words used being taken to signify that which readers would reasonably understand by them; in the second place there is responsibility also for the names used being taken to signify those whom the readers would reasonably understand by those names’ and in the third place the same principle is applicable to persons unnamed but sufficiently indicated by designation or description.

My Lords, I demur to the observation so frequently made in argument that these principles are novel. Sufficient expression is given to the same principles by Abbott C.J. in Bourke v. Warren (cited in the proceedings), in which that learned Judge says: "The question for your consideration is whether you think the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant. It is not necessary that all the world should understand the libel: it is sufficient if those who know the plaintiff can make out that he is the person meant". I think it is out of the question to suggest that that means "meant in the mind of the writer" or of the publisher: it must mean "meant by the words employed." The late Lord Chief Justice Coleridge dealt similarly with the point in Gibson v. Evans, when in the course of the argument he remarked "It does not signify what the writer meant: the question is whether the alleged libel was so published by the defendant that the world would apply it to the plaintiff"

25. The strict liability principle was applied in Cassidy v. Daily Mirror [1929] 2.K.B. 331 where Scrutton L.J. said at p.341:-

"In my view, since E. Hulton & Co v. Jones , it is impossible for the person publishing a statement which, to those who know certain facts, is capable of defamatory meaning in regard to A, to defend himself by saying: "I never heard of A and did not mean to injure him." If he publishes words reasonably capable of being read as relating directly or indirectly to A and, to those who know the facts about A, capable of a defamatory meaning, he must take the consequences of the defamatory inferences reasonably drawn from his words.

It is said that this decision would seriously interfere with the reasonable conduct of newspapers. I do not agree. If publishers of newspapers, who have no more rights that private persons, publish statements which may be defamatory of other people without inquiry as to their truth, in order to make their paper attractive, they must take the consequences"

26. It was also applied in Newstead v. London Express Newspapers [1940] 1 K.B. 377 where Sir Wilfred Greene M.R. said at p.387:-

"If the words used when read in the light of the relevant circumstances are understood by reasonable persons to refer to the plaintiff, refer to him they do for all relevant purposes. Their meaning cannot be affected by the recklessness or honesty of the writer. I do not propose to refer to the authorities which establish this proposition, except to quote the words of Lord Loreburn L.C. in E. Hulton & Co v. Jones where he said "What does a tort consist in? It consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and "injured by it". In the case of libel, once it is held that the words are capable of referring to the plaintiff, it is, of course, for the jury to say whether or not they do so refer. Subject to this, the principle is in truth an illustration of the rule that the author of a written document is to be taken as having intended his words to have the meaning which they convey when understood in the light of the relevant surrounding circumstances. In the case of libel, the same words may reasonably convey different meanings to a number of different persons or groups of persons, and so be held to be defamatory of more persons than one.

After giving careful consideration to the matter, I am unable to hold that the fact that defamatory words are true of A, makes it as a matter of law impossible for them to be defamatory of B, which was in substance the main argument on behalf of the appellants. At first sight this looks as though it would lead to great hardship. But the hardships are in practice not so serious as might appear, at any rate in the case of statements which are ex facie defamatory. Persons who make statements of this character may not unreasonably be expected, when describing the person of whom they are made, to identify that person so closely as to make it very unlikely that a judge would hold them to be reasonably capable of referring to someone else, or that a jury would hold that they did so refer. This is particularly so in the case of statements which purport to deal with actual facts. If there is a risk of coincidence it ought, I think, in reason to be borne not by the innocent party to whom the words are held to refer, but by the party who puts them into circulation. In matters of fiction, there is no doubt more room for hardship. Even in the case of matters of fact it is no doubt possible to construct imaginary facts which would lead to hardship. There may also be hardship if words not on their faces defamatory, are true of A, but are reasonably understood by some as referring to B, and as applied to B are defamatory. But such cases must be rare. The law as I understand it is well settled and can only be altered by legislation."

27. It was again considered by the House of Lords in Morgan v. Odhams Press [1971] 1W.L.R. 1239 where Lord Reid said:-

at page 1242:-

"It must often happen that a defamatory statement published at large does not identify any particular person and that an ordinary member of the public who reads it in its context cannot tell who is referred to. But readers with special knowledge can and do read it as referring to a particular person. A number of matters are not in dispute in this case. It does not matter whether the publisher intended to refer to the plaintiff or not. It does not even matter whether he knew of the plaintiff’s existence. And it does not matter that he did not know or could not have known the facts which caused the readers with special knowledge to connect the statement with the plaintiff. Indeed the damage done to the plaintiff by the publication may be of a kind which the publishers could not have foreseen. That may be out of line with the ordinary rule limiting damage for which a tortfeasor is liable, but that point does not arise in this case.

and at Page 1243

"Some people may think that the law has gone too far in holding that the publisher of a defamatory statement which identifies no one is liable if knowledge of special facts which the publisher could not know causes sensible people to think that the statement applies to someone the publisher had never heard of. That may be arguable: I express no opinion about it, further than to say that in deciding the question one would require to have in mind not only the innocent publisher but also the person who wishes to injure the reputation of the plaintiff but tries to avoid liability by disguising his libel so that it conveys nothing to the ordinary reader but causes those with special knowledge to infer that it is aimed at the plaintiff.

and at page 1244.

"There was no peg or pointer in Cassidy v. Daily Mirror Newspapers [1929] 2 K.B. 311 or in Hough v. London Express Newspaper Ltd [1940] 2 K.B. 507. I see nothing wrong with these decisions. They do, however, show that the court recognises that rather far-fetched inferences may be made by sensible readers. I therefore reject the argument that the appellant must fail because the respondent’s article contained no pointer or peg for his identification."

and at page 1245

"It may be that publisher ought to have a defence so that they are not liable if neither they nor the authors knew or ought to have known anything about the plaintiff or any special reasons which cause certain readers to identify him with the defamatory matter, but we are not concerned with that in this case.

What has to be decided is whether it would have been unreasonable for a hypothetical sensible reader who knew the special facts proved to infer that this article referred to the appellant"

28. In view of the weight of the highest authority I must conclude that at Common Law the strict liability principle applies notwithstanding the novelty of facts in this case nor am I able to say that it would be unreasonable for a hypothetical sensible reader who knows the special facts to be proved in this case to infer that the advertisement referred to the claimant.
29. I now consider the impact of Article 10 of the Convention bearing in mind Section 12 (4) of the Human Rights Act 1998 that I "must have particular regard to the importance of the Convention right to freedom of expression".
30. The harshness of the strict liability principle has long been the subject of concern.
31. Fletcher Moulton L.J. in his dissenting judgment in Jones v. Hulton [1909] 2 KB 444 said at page 473:-

"But the most serious aspect of the new doctrine is when we apply it to cases where the description is not by name. After all a name is only one means of identification, and, considering the millions of names that must exist in England and the improbability of any man’s name being borne by him alone, is not a very strong one. There is no difference in the eye of the law with regard to an indication of identity by name and indication by other modes of description. Now suppose that no name is mentioned, but that the description is purely circumstantial"

32. It was considered by the Porter Committee in 1948

"56. In ascertaining the meaning of the words, the criterion is not: "What did the defendant intend the words to mean? It is: "What would the words reasonably be understood to mean in the light of the surrounding circumstances as known to the persons to whom they were published?"

57. That is the common law rule. A considerable body of criticism has been directed against it. This is only to be expected in view of the fact that in the past, heavy damages have been awarded in libel actions against defendants who had no idea that the words published would be defamatory of any existing person and, in some cases could not, by the exercise of any reasonable care, have ascertained that they would be. The result offends one’s sense of justice.

58. A facile remedy for the injustice which may result from the application of the common law rule would be to alter it by legislation and to substitute a subjective for an objective test that is to say to determine the question whether words are defamatory by the answer to the question "What did the defendant intend the words to mean?" Instead of the answer to the question "What would the words reasonably be understood to mean in the light of the surrounding circumstances as know to the persons to whom they were published?

59. This remedy has simplicity to commend it. It would undoubtedly be welcomed by writers, publishers and printers who, as the law stands, may find themselves involved in a liability for damages for a wholly innocent act. On the other hand, it is unquestionable that there are cases (although it is possible to exaggerate their number) where a person who has a really genuine grievance would be left without any kind of redress if the common law rule were simply reversed. It would not seem right that a person whose reputation had been seriously affected by a defamatory statement should have no opportunity to claim to have his reputation vindicated in our Courts merely because no one had intended to defame him.

61. It was urged by a number of witnesses that in these three classes of cases, which for convenience, we refer to as cases of "unintentional defamation" the lack of any intention to defame, at any rate, if coupled with the absence of any negligence on the part of the defendant, should constitute a complete defence to any action for defamation. To accept so drastic a proposal, however, would leave the equally innocent victim of the defamatory statement not merely without any reparation of the injury sustained to his reputation, but also without any means of clearing his name publicly. The defamer might be willing to publish an apology; but to do so would be an act of grace on his part. There would be no method of compulsion, nor would there be any control over the form of the apology or of the publicity given to it.

62. While, in our view, some amendment of the existing law is required to deal with cases of "unintentional defamation" it is essential that any such amendment should ensure that all reasonable steps are taken to clear the reputation of the injured person by a correction and apology which should be given publicity appropriate to the circumstances of the original defamatory publication. If these steps are taken, we think that practical justice will be done without the award of monetary damages."

33. The result was the almost never used Section 4 offer of amends procedure in the Defamation Act 1952. (See Paragraph vii 3 of The Neill Report). The Neill Report resulted in a new offer of amends procedure in the Defamation Act 1996 which has its drawbacks as Mr Warby has pointed out. It is not a true defence. The blameless publisher has not only to make and publish a correction and apology but also to offer compensation (See Section 2 (4)).
34. In my judgment the 1996 Act does not remove the harshness of the strict liability principle in the case of a commercial publisher. It remains an interference with the freedom of expression.
35. In Casado Coca v. Spain the European Court of Human Rights decided on the 26th January 1994 that, in the case of a Barcelona lawyer where the Spanish Bar authorities and Courts had upheld disciplinary findings against him, unanimously that Article 10 applied to commercial advertising but by 7 votes to 2 that there had been no breach of Article 10.
36. In its judgment the Court said at Paragraphs 35-37

"35. The Court would first point out that Article 10 (art. 10) guarantees freedom of expression to "everyone". No distinction is made in it according to whether the type of aim pursued is profit-making or not (see, mutatis mutandis, the Autronic AG v. Switzerland judgment of 22 May 1990, Series A no. 178,p23, para 47) and a difference in treatment in this sphere might fall foul of Article 14 (art. 14).

In its Barthold v. Germany judgment of 25 March 1985 (Series A no 90, pp. 20-21, para 42) and the Court left open the question whether commercial advertising as such came within the scope of the guarantees under Article 10 (art. 10) but its later case-law provides guidance on this matter. Article 10 (art 10) does not apply solely to certain types of information or ideas or forms of expression (see the markt intern Verlag GmbH and Klaus Beermann v. Germany judgment of 20 November 1989, Series A no. 165, p. 17 para 26), in particular those of a political nature; it also encompasses artistic expression (see the Muller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133, p, 19 para 27), information of a commercial nature (see the markt intern Verlag GmbH and Klaus Beermann judgment previously cited, ibid.) - as the Commission rightly pointed out - and even light music and commercials transmitted by cable (see the Groppeera Radio AG and Others v. Switzerland judgment of 28 March 1990, Series Ano, 173, o.22 para 54-55).

36. In the instant case the impugned notices merely gave the applicant’s name, profession, address and telephone number. They were clearly published with the aim of advertising, but they provided persons requiring legal assistance with information that was of definite use and likely to facilitate their access to justice.

37. Article 10 (art 10) is therefore applicable

 

and at paragraphs 55-57

55. The Bar authorities and the country’s courts are in a better position than an international court to determine how, at a given time the right balance can be struck between the various interests involved, namely the requirements of proper administration of justice, the dignity of the profession, the right of everyone to receive information about legal assistance and affording members of the Bar the possibility of advertising their practices.

56. In view of the above, the Court holds that at the material time - 1982-83 - the relevant authorities reaction could not be considered disproportionate to the aim pursued.

57. In conclusion, no breach of Article 10 (art. 10) has been made out"

37. The 2nd defendants’ advertisement published by the 1st defendants will have been regarded by many as squalid and degrading to women but distasteful though it may be, it is not unlawful and in accordance with European Law is a form of expression protected by Article 10.
38. I have to consider the application of Article 10(2) of the Convention. As in my judgment the strict liability principle is a restriction of the exercise of the freedom of expression, I must answer the question whether in the factual circumstances of this case that restriction is necessary in a democratic society for the protection of the reputation of others such as the claimant.
39. What is meant by the word "necessary" was considered by the Court of European Human Rights in Handyside v. U.K. [1976] 1 EHRR 737. In its judgment the Court said at page 753:-

"By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the "necessity" of a "restriction" or. "penalty" intended to meet them. The Court notes at this juncture that, whilst the adjective "necessary", within the meaning of Article 10(2), is not synonymous with "indispensable", neither has it the flexibility of such expressions as "admissible" "ordinary, "useful", "reasonable" or "desirable". Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of "necessity" in this context"

40. In Derbyshire C.C. v. Times Newspapers [1993] A.C.534 Lord Keith of Kinkel said at p.550:-

"As regards the words "necessary in a democratic society" in connection with the restrictions on the right to freedom of expression which may properly be prescribed by law, the jurisprudence of the European Court of Human Rights has established that "necessary" requires the existence of a pressing social need, and that the restrictions should be no more than is proportionate to the legitimate aim pursued. The domestic courts have "a margin of appreciation" based upon local knowledge of the needs of the society to which they belong."

41. Photography and filming play a major role in modern journalism in newspapers, magazines and television in getting the message across.
42. Pictures are necessary, effective, and telling adjuncts to a story.
43. It would impose an impossible burden on a publisher if he were required to check if the true picture of someone resembled someone else who because of the context of the picture was defamed. Examples are legion :- unlawful violence in street protest demonstrations, looting, hooliganism at football matches, people apparently leaving or entering Court with criminal defendants and investigative journalism into drug dealing, corruption, child abuse and prostitution.
44. Whereas theoretically the existence of the real Artemus Jones and the second Harold Newstead, a 30 year old Camberwell man, could have been discovered, it would be impossible to discover whether a "look-alike " or "spit and image" of the photograph of a real person existed.
45. The fact that in over a century no claim has been made in respect of a libel in respect of a "look alike" picture is an indication that there is no pressing social need for the application of the strict liability principle for the protection of the reputation of the "look alike".
46. If someone were deliberately to publish a defamatory article or broadcast a defamatory film not naming the victim but using a "look alike" picture of a person, perhaps a celebrity, so that those who know that person would identify that person from the "look alike" picture, that person would have a remedy, the tort of malicious falsehood. That in my judgment would provide sufficient protection of reputation.
47. In conclusion my judgment is that the strict liability principle should not cover the "look alike" situation. To allow it to do so would be an unjustifiable interference with the vital right of freedom of expression disproportionate to the legitimate aim of protecting the reputations of "look alikes" and contrary to Article 10 of the Convention.
48. While I have every sympathy for the claimant and her family at the embarrassment caused by the pornographic advertisement and the "look alike" photograph, in my judgment her claim as a matter of law has no realistic prospect of success nor should it have.