Media law

By Amber Melville-Brown, Finers Stephens Innocent, London

Model litigationKerry O'Shea v MGN Limited v Free4Internet Ltd

In two recent libel actions - one decided by Mr Justice Morland and the other settled on confidential terms - models and modelling agencies, more at home on the catwalk than in the Royal Courts of Justice, have been the subject of legal argument.In the first case last month, an 'adult only' Internet site and a glamour model were the unusual subjects to strut into the hallowed halls in the Strand.The result once more pushes the boundaries of what is acceptable in the exercise of freedom of expression in modern society.The case related to the publication in the Sunday Mirror of an advertisement for 'the world's first free adult ISP'.

It featured the photograph of a model, holding a telephone to her ear, and saying: 'See me now at www .

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internet.com'The woman, who had been pictured with her permission and was described by Mr Justice Morland as 'a well-known glamour model', was not named in the advertisement or otherwise identified.The claimant, Kerry O'Shea, who was described by the judge as 'a respectable young woman aged 24', claimed that she was the 'lookalike' or 'spit and image' of the model and that people seeing the advertisement and reading the words, would believe that she was 'appearing or performing on a highly pornographic Web site containing material of an explicit, indecent and lewd nature and had shamelessly agreed to promote this Web site and her own appearance on it in a national newspaper'.This case raised the question as to whether innocent publishers should be liable in defamation to individuals who look like photographs they publish, where the publisher did not intend to defame them, nor to identify them, nor indeed was even aware of their existence.To substantiate a claim in defamation, a claimant must show that a defamatory statement, which is of or concerning him, has been published.The test is objective; would the ordinary, sensible reader, having regard to the words complained of (and the photograph) and clothed with any special knowledge (such as that the claimant is the spit and image of the model) have reasonably concluded that the person referred to was the claimant?Even though the photograph in this instance was not of Ms O'Shea, the judge found that, in all the circumstances, this 'would not be unreasonable'.It is no defence to an action in defamation that the defendant did not intend to defame the claimant, even if the defendant was unaware of the claimant's existence.

So, the claimant should have succeeded.

However, Mr Justice Morland had to consider the submission by the defendants 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 a lawful business.' In particular, they alleged that to do so would be an 'unjustified interference with freedom of expression contrary to article 10 of the [European] Convention [of Human Rights]'.The judge found that the principle of strict liability should apply, having regard to previous case law and notwithstanding the novelty of the facts of the case.

However, he went on to utter the auspicious words: 'I now consider the impact of article 10 of the convention bearing in mind section 12(4) of the Human rights Act 1998 that I must have particular regard to the importance of the convention right of freedom of expression.'In his judgment, the strict liability rule is an interference with freedom of expression.

It impacts harshly on the commercial publisher, and is not greatly assisted by the offer of amends procedure contained in the Defamation Act 1996, as a blameless publisher must still publish a correction and apology and offer compensation.Was such an interference with freedom of expression justified as necessary in a democratic society for the protection of the reputation of others, such as the claimant?The judge considered that there was not the required 'pressing social need' for the restriction; 'photographs and filming play a major role in modern journalism in newspapers, magazines and television in getting the message across...

Pictures are necessary, effective and telling adjuncts to a story,' he said.To apply the strict liability principle to the 'lookalike' situation would impose an impossible burden on a publisher, as he would have to check that any pictures used in a context which might cause offence to another - scenes of hooliganism, unlawful violence, or prostitution, for example - did not resemble anyone else.

Moreover, he suggested that there was no pressing social need for this to be done, as there had been no similar claim by a lookalike for more than a century.While sympathising with the claimant, the judge found for the defendants, thereby shutting the gates to what might have been a flood of actions against publishers by people they had never heard of or seen.The judgment highlights one more interesting matter.

To succeed in an action for defamation, a claimant must also show that the publication is defamatory of them.

According to the judge: 'If the photograph had been a true photograph of the claimant, her claim in defamation would undoubtedly be successful.' Undoubtedly? Jurors, chosen at random and intended to represent a cross-section of society, must decide if the publication in question has lowered the claimant in the estimation of sensible, right-thinking members of society.

The judge said the advertisement in question 'will have been regarded by many as squalid and degrading to women' but went on, 'distasteful though it may be, it is not unlawful.'Indeed.

A quick scan of the top shelves of any newsagent, or a surf through the Internet, will tell you that a not insignificant section of society is interested in buying and/or viewing pornography.

If this is the case, would these people, sitting on a jury, also find that to suggest that someone participates in it would be to lower them in their estimation, to cause them to be shunned and avoided, or expose them to ridicule or contempt? Perhaps that is a question for another debate.

Elite v BBCIn the second recent case involving the modelling industry, a confidential settlement was reached in early June between the BBC and the Elite agency, over a BBC 'MacIntyre Undercover' television programme.Elite had brought proceedings for libel against the BBC over the investigative documentary in which it said it had been unfairly portrayed through various allegations, including the pimping of underage girls and sexual exploitation of the models.But the case did not result in the anticipated lengthy trial, with the parties settling the action on confidential terms, at the eleventh hour.The claimants had persuaded the court at an earlier interlocutory hearing that the presence of a jury was not required.

They alleged that hundreds of hours of footage had been selectively edited to a mere fraction used in the programme, leading to its ultimate conclusions.

They would have wanted the court to view this additional footage to substantiate their claim that 'MacIntyre Undercover' was unfair.In an agreed statement, the BBC admitted that it had unfairly portrayed the agency in the documentary, by omitting to reflect that the agency 'warns and seeks to protect its young teenage models from sexual exploitation or other potential dangers to them (such as from illegal drugs).'For its part, Elite accepted that some of its executives had made some 'inappropriate' sexual remarks.