Full case report
O’Shea v MGN Limited
Reference  EMLR 943
Court Queen's Bench Division
Judge Morland J
Date of Judgment 5 Mar 2001
Defamation – libel – reference – photograph – look-alike – Article 10 ECHR
The claimant sued the owner of a pornographic website and the publisher of a newspaper for libel, over advertisements for the site. She alleged that a model who appeared in the advertisements closely resembled her and that, as a result, family and friends had been led to believe she was involved in the pornography business. The defendants applied to strike out the claim on the basis that the case on reference was unsustainable on the facts, and that a claim advanced on this basis was incompatible with Article 10 ECHR.
(1) Did the claimant have a real prospect of success in establishing on the facts that the advertisement would be understood to refer to her? (2) If so, was it compatible with Article 10 ECHR for the defendants to be held strictly liable, without fault, for a reference innuendo of this nature?
Dismissing the action: (1) The reference contention was arguable on the facts. (2) As a matter of precedent, the claim was not distinguishable from the well known cases in which defendants had been held liable for innocently referring to a claimant, when aiming their words at others of the same or similar name or characteristics. However, there was a difference between words and images, and the interference with freedom of expression which would exist if the rule applying to words was extended to look-alike cases was not justifiable under Article 10(2) ECHR.
This was probably the first libel case in which the HRA made a difference to the outcome. There was high authority that innocence is no defence, where defamatory words are reasonably read by others as referring to the claimant. But there was scant authority worldwide on the application of such rules where appearance or images are concerned. The judge accepted that the risks, and the opportunities to guard against them, differ in principle in the case of appearance and images. Some commentators were unpersuaded of the validity of the distinction, but modern society does recognise a clear distinction between different modes of communication, and even now it is true to say that a person’s appearance is largely outside his control.
Carter Ruck for the Claimant; Martin Cruddace for MGN Ltd; Henri Brandman for D2 (Free4Internet.net Limited)
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