Bar talk

In order to bring a claim for defamation it is necessary for the claimant to prove that the defamatory words or pictures could be understood by ordinary sensible readers to refer to him or her. It does not matter that the publisher of the defamatory material did not intend to refer to the claimant, or that the publisher may not even be aware of the claimant's existence.`This strict liability principle was firmly established in the well-known case of Hulton v Jones [1910] AC in which a light-hearted newspaper article referred to a fictional character, Artemus Jones, who was alleged to have been seen in Dieppe with a woman who was not his wife. There was, in fact, a real individual with the name Artemus Jones who claimed that the article was capable of referring to him and suggested that he had committed adultery. He was therefore able to bring an action for libel.`A case was brought recently against the publishers of the Sunday Mirror based upon this principle. The Sunday Mirror had published an advertisement for a pornographic website which included a photograph of an unnamed woman promoting the site. The woman was a well-known glamour model who had consented to the use of her photograph, but the claimant alleged that the photograph bore such a resemblance to her, even though she accepted that it was not her, that readers of the advertisement who had made her acquaintance would believe that it was in fact a picture of her. The claimant sued for libel on the basis that the advertisement falsely suggested that she was appearing in and promoting a pornographic website. This was the first case in English law where a claimant had sought damages for libel in respect of a defamatory imputation arising out of the publication of a photograph of another person who was the lookalike of the claimant.`On the newspaper's application to strike out the claim, the judge decided that the strict liability principle established in Hulton v Jones was good law and, in common law the claimant was entitled to bring a claim for libel in relation to the lookalike photograph. He ruled that sensible readers knowing the claimant could think that the advertisement referred to her.`However, the judge then considered the impact of Article 10 of the European Convention on Human Rights which was incorporated into English law by the Human Rights Act 1998 on 2 October last year. Article 10 provides that everyone has the right to freedom of expression, but this right may be subject to certain restrictions set out in Article 10(2) of the convention.`The Hulton v Jones principle is undoubtedly a restriction on the exercise of the right to freedom of expression. The question for the judge was whether in the circumstances of a lookalike photograph, the restriction was justifiable under Article 10(2) as being necessary in a democratic society for the protection of the reputation of others. The judge decided that it would impose an impossible burden on a publisher to be required to check if the true picture of one person resembles someone else who, because of the context of the picture, was defamed. He therefore held that the common law strict liability principle should not cover this situation. He ruled that to allow it to do so would be an unnecessary and unjustifiable interference with the right to freedom of expression and contrary to Article 10 of the European Convention.“Kevin Bays is a partner at Davenport Lyons and solicitor for the Sunday Mirror