Spitting image: unintentional defamation - 18 May 2001

Imagine this. Your maiden aunt rings and says she is horrified to have seen you in a pornographic advertisement for sexual services. She threatens to cut you out of her will. The advertisement, in fact, contains a photograph of a professional model who looks exactly like you, but this explanation fails to convince your aunt. Will English law enable you to clear your name and save your inheritance?  The answer appears to depend on when in the past hundred years you sued.

In 1910, one Artemis Jones recovered damages in respect of a reference in an article to his namesake, whom the author believed to be an entirely fictitious person. Thirty years later, a Camberwell man, Harold Newstead, collected damages (albeit a farthing) against a newspaper which reported that an identically named man living in the same area had been convicted of bigamy.

In 1952, Parliament introduced a statutory defence of "unintentional defamation" to redress what many regarded as an injustice to publishers. A defendant who happened to libel someone to whom he had not intended to refer was afforded a complete answer if he could show that he had taken all reasonable care in relation to the publication and had offered to publish a suitable correction and sufficient apology.

It was in this way that for the next 40 years the courts balanced the competing demands of parties both claiming to be innocent victims of unfortunate coincidence. But in 1996 a new Defamation Act replaced the "unintentional defamation" defence with a new "offer to make amends" procedure, which required a defendant to offer to pay compensation if he wished to escape liability for inadvertent defamatory references.

This variation appears to have proved a step too far for the UK courts. In a decision earlier this month,

Mr Justice Morland found that the current state of the law constitutes an unjustifiable interference with freedom of expression. Applying Article 10 of the European Convention of Human Rights, he held that a complainant of the type envisaged at the start of this article could not bring proceedings for libel, notwithstanding the embarrassment caused by the pornographic associations.

While his judgment is limited to the case of "lookalike" photographs, it is hard to see why the judge’s reasoning should not be extended to the "namesake" cases discussed above.

The decision may see the end of the current precaution of book publishers to check telephone directories against the names of fictional characters. It may even mean that court reporters can give up the practice of identifying the accused by more than his name.

Meanwhile, those with an identical twin would be well advised to check what their sibling is getting up to.

David Parsons and Marcus Mander are members of the computers, communications and media unit of Lovells

David Parson and Marcus Mander

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