Common sense in the courtroom?


There have been several interesting defamation judgments recently that demonstrate that common sense in the courtroom is not yet dead.

In one of the more intriguing of such cases the claimant, Kerry O’Shea, an otherwise respectable young lady in her early 20s, complained about an advertisement for "The World’s First Free Adult ISP" in which she appeared to feature, somewhat provocatively. The adult-only internet site had in fact used a well-known glamour model who just so happened to be, in the words of the claimant, the "spitting image" of her.  The focus of the claim was that people seeing the advertisement and its clearly suggestive content would believe that the claimant was appearing on a highly pornographic website that she had also agreed to promote through the national press. It was quite clear from the case that the publisher had no intention to defame the claimant and was not in the circumstances even aware of her existence.

So where did she go from here? We are all aware that one of the first hurdles of establishing a defamation claim is that the words complained of must be shown to refer to the claimant and that the sensible reader would have reasonably concluded that this was the case.

On the facts of this case, although the person referred to in the advertisement was not in fact the claimant, the judge found that it would not be unreasonable in the circumstances for a person to conclude that it was indeed Ms O’Shea.

However, the defendants argued 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 the lawful business", a point which the judge accepted.  It is important, however, to draw attention to the reasoning of the judge on this point as the defendant also argued, somewhat predictably, that should the principle of strict liability be deemed to apply in this case it would amount to interference with freedom of expression contrary to article 10 of the European Convention on Human Rights.  The judge indeed appears to have been swayed by this argument and deemed the strict liability rule to be an interference with freedom of expression. Despite expressing sympathy for the claimant in this action, the judge did not feel that this was a case where there was a need for restriction of freedom of expression.

The result is a relief for publishers who would have been left with an almost impossible burden to prevent publication of pictures that may offend ‘lookalikes’ of whom the publisher would not immediately be aware or, in a realistic position, be able to locate in advance of the publication.  

 Sarah Thomas is an assistant solicitor in media and entertainment at Charles Russell

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