Article Story: 'PRESSING SOCIAL NEED' AND STRICT LIABILITY IN LIBEL

Date: 31/8/2001

In a judgment handed down on May 4, Morland J. attempted to strike a balance between two apparently irreconcilable principles.  The first is the need in a democratic society for freedom of expression.  The second is the need for the protection of individuals who may suffer damage by the exercise of that right.  The particular aspect of the second principle is the element of strict liability enshrined in the English law of libel.

The facts of the case are simple.  The claimant was unfortunate enough to bear a striking resemblance to a 'Miss E', who appeared in an advertisement for a pornographic Internet Service Provider (the Second Defendant) who in turn advertised in the Sunday Mirror (the First Defendant). The photograph in question did not name or identify the claimant, other than by virtue of the strong resemblance between her and the Miss E portrayed.  As Morland J. strikingly observed, 'If the photograph had been a true photograph, of the claimant, her claim in defamation would undoubtedly be successful'.

On one level the court was being asked to make a judgment with which it is well familiar; namely whether the rights of society as a whole should take precedence over the right of an individual.  The law must (for example) decide whether the need that society has for sewage works should take precedence over the rights of an individual not to have his person or property irradiated by the inevitable odour.  In Miller v Jackson [1977] Q.B.966, Lord Denning famously had to determine the relative rights of a village cricket club to play cricket on its ground, and the rights of adjoining householders not to be showered with cricket balls.  Rather as the current judiciary (rightly) extols the virtues of freedom of expression, so did Lord Denning extol the virtues of village cricket in refusing the plaintiffs in that action an injunction which would have protected them from the inevitable danger they faced of damage both to their property and themselves.

The question which Morland J had to decide was whether a photograph which (to borrow his terminology) was not a true photograph of the claimant, but which nonetheless identified her, gave her a cause of action in libel.  The principles applicable are well established, and are set out by Morland J. in its judgment.  As he observes: -

'The test in law is objective.  Would the ordinary reader of the advertisement, having regard to the words complained of and the photograph in the context of the advertisement as a whole and clothed with the special knowledge of the publishers, that is that the photograph was the 'spit and image' of the claimant, have reasonably concluded that the woman speaking into the telephone [in the photograph] was the claimant?'

The Judge, since this was an application by the Defendants for Summary Judgment pursuant to CPR Part 24, decided that he was 'unable to conclude that the jury properly directed could not reasonably decide that the defamatory message complained of referred to the claimant'.

Morland J. then observed that the researches of Counsel indicated that in the last 100 years only two such cases had been brought before the courts in the jurisdictions recognised by the courts of this county.  The actions (in America and colonial East Africa) were both unsuccessful.  However this does indicate that the freedom of the press to publish (in this case) pictures could hardly be said to be threatened by a flood of actions had this claimant succeeded.

The Judge summarised the relevant laws set out in the Faulks Report of 1975 (paragraph 121):

'In order to succeed in a libel action the plaintiff must prove that the words refer to him.  The criterion is the same as for the meaning of the words i.e. would the ordinary sensible reader (or viewer, or listener) understand the words as referring to the plaintiff having regard to their terms and (appropriate cases) any special facts relevant to the identification proved to have been known to a class of readers?  The intention of the publisher is completely irrelevant.  Thus, for example, if a work of fiction is understood to refer to the plaintiff the plaintiff will be entitled to succeed, and it is completely irrelevant that the author had no intention of referring to the plaintiff, and may not even have known of his existence.'

This conveniently sets out what is known as the strict liability principle.  In other words, as a matter of policy, the English law of libel has placed the burden on the publisher to in effect insure any individual who suffers as a result of that (normally commercial) publication, even if the person concerned suffers damage wholly independently of any fault (in the legal sense) on the part of the publisher.

Morland J. went on to cite various judgments from the leading House of Lords authority Hulton v. Jones [1910] A.C.20, which established liability for 'unintentional defamation'.  Certainly to the twenty-first century lawyer, the underlying thinking of those judgments appears archaic.  Interestingly, however, even as early as in 1929, there appears to have been at least an embryonic debate on the relative importance of freedom of speech and the rights of the individuals, as indicated by the passage of Scrutton L.J.'s judgment in Cassidy v. Daily Mirror [1929] 2KB 331 at 341:-

 'In my view, since Hulton v. Jones, it is impossible for the person publishing a statement which, to those who knew certain facts, is capable of defamatory meaning in regard to A, to defend himself by saying 'I never heard of A and did not mean to injure him.'  If he publishes words reasonably capable of being read as relating directly or indirectly to A and, to those who knew the facts about A, capable of a defamatory meaning, he must take the consequences of the defamatory inferences reasonably drawn from his words.

It is said that this decision would seriously interfere with the reasonable conduct of newspapers.  I do not agree.  If publishers of newspapers, have no more rights than private persons, publish statements which may be defamatory of other people without enquiries as to their truth, in order to make their paper attractive, they must take the consequences.'

In other words, Scrutton L.J. was saying that the commercial enterprise of publishing must be recognised as such, and if as part of that commercial exercise an innocent third party suffers loss, then those engaging in the commercial enterprise (and publishing) must make good the loss.

Moreland J. cited two more recent authorities (Newstead v. London Express Newspapers [1940] 1KB 377 and Morgan v. Odhams Press [1971] 1WLR 1239) where the same principles were applied.  Morland J. therefore concluded:

'In view of the weight of the highest authority I must conclude that at Common Law the strict liability principle applies not withstanding the novelty of the 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 refers to the Claimant.'

Concluding then that under the Common Law, the claimant in the action should succeed, Morland J. had by then arrived at the nub of his judgment where he considered the impact of the statutory change which has underlined most of the recent developments in the law applying to the media:

'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 to freedom of expression.

The harshness of the strict liability principle has long been the subject of concern.'

Parliament mitigated to some extent the effect of the strict liability principle in Section 1 of the 1996 Defamation Act, which provided the defence for that form of unintentional defamation represented either by live broadcast or the commercial activity of Internet Service Providers.  However, despite the looming influence of Article 10 of the European Convention, which was part of the rationale for that change in the law, Parliament did not choose to exclude liability for this form of unintentional defamation.

Morland J. considered the proposals of the Porter Committee of 1948, which gave rise to the offer of amends procedure set out at section 4 of the 1952 Defamation Act.  As Morland J. observed, this section is virtually unused and its failure to be of practical value gave rise to the new procedure set out in the new Defamation Act. However, Mr Morland J. then opined:

'In my judgment the 1996 Act does not remove the harshness of the strict liability principle in the case of a commercial publisher.  It remains an interference with the freedom of expression.'

After concluding via a European Court of Human Rights Decision (Casado Coca v. Spain) that the convention applied to advertisements, Morland J. went on to consider this action according to his appraisal of the new legislative background.  Morland J.'s assessment of the publication at issue was as follows:

'The Second Defendant's advertisement, published by the First Defendants, would have been regarded by many as squalid and degrading to women, but distasteful though it may be, it is not unlawful and in accordance with the European law as a form of expression protected by Article 10.'

In what is perhaps the most striking and important passage of his judgment, Moreland J. then when on to attack the whole principle of strict liability which has been a foundation of the law of libel in this jurisdiction:

'I have to consider the application of Article 10(2) of the Convention.  As in my judgment, the strict liability principle is a restriction of the exercise of the freedom of expression, I must answer the question whether in the factual circumstances of this case that restriction is necessary in a democratic society for the protection of the reputation of others such as the Claimant.' [emphasis added].

Morland J. therefore appears to pose this question as the one which the court should decide when determining the application before it:  Is the strict liability a principle, since it is a restriction on freedom of expression one which according to Article 10(2) of the Convention is 'necessary' in a democratic society for the protection of the reputation of the individual?

Starting from base principles, every democratic jurisdiction accepts that some protection for reputation is appropriate.  It follows then that media should at least be subject to that restriction.  The difficult question is where the line should be drawn, i.e. at what point should the media be obliged either to compensate the individuals whose reputation it has damaged, and/or be prevented (before or after an offending publication) by operation of law from causing such damage. The Convention answers this question by applying the requirement that any restriction on the media must be 'necessary in a democratic society'.

The European Court of Human Rights (Handyside v. UK [1976] 1E.H.R.R. 737) concluded that: 'It is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of 'necessity' in this context'.

This was translated by Lord Keith of Kinkel into the concept of 'a pressing social need' in his judgment in Derbyshire C.C. v. Times Newspapers [1993] A.C. 534 at 550.

If the logic of Morland J.'s judgement had seamlessly continued, he should perhaps have then arrived at this question: is there a 'pressing social need' to maintain the strict liability principle in the law of libel?  Morland J. had already indicated that he considers that the 1996 Defamation Act did not 'remove the harshness of the strict liability principle' [for] …the commercial publisher [which] … remains an interference with freedom of expression.'

Assuming Morland J. did not mean to propose more lenient treatment for a commercial publisher over a non-commercial publisher, it appears that his own view is that the strict liability principle goes beyond the requirements of a 'pressing social need', and logically then it should fall to the new Human Rights Act (as common law must defer to statute) and should be consigned to the legal scrap heap.

This would be a radical act indeed for a first instance judge, even one of the eminence and seniority of Morland J..  However, apparently drawing back from so radical a step, he then differentiates photography from other forms of 'expression':

'Photography 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 adjunct to a story.

It 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. '

The exercise of 'negative checking' is well known in all forms of publishing/broadcasting.  It is accepted that the exercise cannot be foolproof, and therefore provision is made for the occasional unwanted identification of an individual (or corporation), since there are many ways in which an individual can be identified (graphically/photographically or otherwise).  Because strict liability is imposed in defamation, it has been a burden which commercial publishers of all varieties have always borne in the form of an overhead, and rather as they must bear the cost of news print, radio transmitters etc.  However, separating photography as a means of journalism/publishing, and excluding it from the principle of strict liability creates a seemingly impossible distinction.

Modern 'photography' itself is hard enough to define.  What now is a photograph?  The Collins English Dictionary defines a photograph as 'an image of an object, person, scene etc in the form of a print or slide recorded by camera on photo-sensitive material.'

We will soon all have digital cameras, which have long been the tool of the 'commercial publisher'.  Many homes have the technology to commit the images from those cameras to computers to edit them. Where does a photograph begin and computer enhanced varieties, computer graphics or other technologically advanced graphic representations of individuals end?  As Morland J. himself says, 'Pictures are a necessary, effective, and telling adjunct to a story'.  Can the law maintain then that graphic forms of communication/information fall outside the strict liability principle, whereas literal forms do not?  What about cartoons, animation, paintings, video film etc?  What happens where the identification is via both image and text?

The lack of a 'pressing social need' is, in Morland J.'s view, evidenced by, 'the fact that in over a century no claim has been made in respect of a libel in respect of a 'lookalike' picture.'  Surely this is an equally good argument for the application of the strict liability principle to photographs constituting no interference with freedom of expression.  This might be said to undermine Morland J's conclusion:

'In conclusion, my judgment is the strict liability principle should not cover the 'lookalike' situation.  To allow it to do so would be an unjustifiable interference with the vital right of freedom of expression disproportionate to the legitimate aim of protecting the reputations of 'look-alikes' and contrary to Article 10 of the Convention'.

Practically speaking (as is appropriate since “social need” is the issue), since cases such as this appear to be a phenomenon which takes place less than once in 100 years, it could hardly be said to be a serious disincentive to the media generally in publishing photographs in advertisements for pornography, or any other more worthy forms of expression.  The outcome is that a young woman's reputation has been affected and she has (presumably) suffered considerable embarrassment.  Accordingly, she might reasonably conclude that her rights under Article 8 of the Convention have not been protected by the Court.

It is I believe the inevitable result of this judgment (unless it is reversed by an appellate court) that the knives will be out on the part of certain elements of the media for the whole strict liability principle, since it has already apparently succeeded in making a substantial incision into it via this judgment.

Finally, it should not be forgotten that this application was made by the defendant pursuant to the summary judgment jurisdiction.  Both the consequences to the claimant of the judgment, and the remarkable application of the summary jurisdiction is summed up in the last paragraph of Morland J's judgment:

'While I have every sympathy for the claimant and her family at the embarrassment caused by the pornographic advertisements and the 'lookalike' photograph, in my judgment her claim as a matter of law has no realistic prospect of success nor should it have.'

The defendants presumably concluded that the jury imagining itself in the position of the Claimant, and themselves left without a remedy in these circumstances, might have found in her favour.  Juries tend to be more cynical (or perhaps realistic) about the commercial activities of the press, and the desire on its part to reduce its overhead and thereby increase its profit margin at the expense of those that appear in its pages – particularly where the action concerns an advertisement for a pornographic website.  This is more conveniently characterised as a struggle for ever greater 'freedom of expression'.  A liability to compensate defamed 'look-alikes' is surely something which the media could bear, just as they do victims of other unintended defamations.  As to whether they should be the subject of injunctive relief, that is a more finely balanced argument.  However, to place on a claimant the burdens inherent in Malicious Falsehood – i.e. having to prove both malice and loss (as proposed by Morland J.) – does not appear to be a practical solution in these circumstances.

Jonathan Coad

This article was first published in the Entertainment Law Review, August 2001, Issue 7 (p199) and is reproduced by kind permission of Sweet and Maxwell Limited.

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