Lookalike defamation claim incompatible with advertiser’s freedom of speech

A recent High Court decision concerning pornographic advertisements for an adult ISP in the Sunday Mirror looks set to spark a lively debate on the relative human rights of advertisers and ordinary people who are unintentionally referred to in advertisements.

Free4internet.net published advertisements for an adult ISP containing a raunchy photograph of Miss E, a well known glamour model. Ms Kerry O’Shea, a ‘respectable young woman aged twenty four’, who is said to have been a lookalike of Miss E, sued Free4internet.net and MGN Ltd, the publishers of the Sunday Mirror, for defamation. She claimed that people who knew her believed she had agreed to promote a pornographic web site.

Surprisingly, the claim failed. There is a long established common law principle that publishers can be liable for defamation even when it is unintentional (the doctrine of ‘strict liability’). This principle was established in a 1910 decision by the House of Lords. In Mr Justice Morland’s opinion, however, the strict liability principle (at least as it applies to lookalikes) is incompatible with a publisher’s right to freedom of speech enshrined in the European Convention on Human Rights and now incorporated into UK law under the Human Rights Act 1998.

The lookalike problem which arose in this case is a very unusual one. This is the first UK decision ever on the point. The point only appears to have been ruled upon twice before in the last century anywhere in the world. Far more common in practice are claims by real people (and companies) whose names have unwittingly been used by advertisers.

In many cases there is a good defence to these ‘namesake claims’ because it is obvious that the individual or company in the advertisement was intended to be fictional, and any name similarities therefore coincidental. Sometimes this is not the case, and the advertiser may be exposed to defamation liability.

The O’Shea case will be useful ammunition for advertisers caught out like this in future. Whether it would be followed if the point came up again in the High Court remains to be seen. The principle of strict liability for unintentional defamation may restrict publishers’ freedom of speech, but there are other human rights which also need to be considered, such as the right people have to protect their reputation.

Whatever one makes of this decision, advertisers and agencies should continue to make all reasonable searches when selecting imaginary names for fictional characters in advertisements. There are many kinds of search which can be made in order to minimise the risk of claims by irate namesakes and the O’Shea case should not be relied on as some kind of solution to the problem.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.