O’Shea v MGN [2001] EMLR 943

Key Point

  • The imposition of strict liability for unintentional defamation by the publication of a “look alike” photograph was an unjustifiable interference with freedom of expression under Article 10(2) of the ECHR

Facts

  • The claimant brought an action against the owner of a pornographic website and the publisher of a newspaper for libel over an advertisement for the website
  • The claimant alleged that a model who appeared in the advert closely resembled her and that, as a result, people who knew her would reasonably have thought that it was her
  • The defendants applied for summary judgment, arguing that the case on reference was unsustainable since (1) the claimant had no realistic prospect of establishing that the publication referred to her and (2) it would be contrary to Article 10 (right to freedom of expression) of the ECHR

Issues

  • Whether the claimant had realistic prospect of establishing that advertisement referred to her
  • Whether the principle of strict liability for inadvertent defamation extended to use of photographs of look-alikes, and whether imposing a strict liability in this case would be compatible with Article 10 of the ECHR

Held (High Court, Queen’s Bench Division)

  • Summary judgment granted; the strict liability principle should not cover the “look-alike” situation as it would be an unjustifiable interference with the right of freedom of expression

Morland J

  • Upon analysing the previous caselaw, he concluded 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’: p. 951-52
  • However, considering the meaning of the word “necessary” under Article 10(2) of the ECHR, he said that ‘[i]t 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’ and that it would be ‘impossible to discover whether a “look-alike” or “spit and image” of the photograph of a real person existed”’: p. 955-56

Commentary

  • It has been commented that “separating photography as a means of journalism/publishing, and excluding it from the principle of strict liability creates a seemingly impossible distinction”, especially considering the difficulty to define modern “photography” and to distinguish between different modes of communication: Jonathan Coad, ‘“Pressing social need” and strict liability in libel’, Ent. L.R. 2001, 12(7), 199-201