O'Shea v MGN [2001] EMLR 943

Facts

• The claimant, Mr. O’Shea, brought a defamation claim against Mirror Group Newspapers (MGN) following the publication of an advertisement in The Sunday Mirror for an adult telephone service.
• The advertisement displayed a photograph of a woman resembling Mr. O’Shea, accompanied by the caption "This could be you," inviting readers to call a premium-rate number.
• Some people who knew Mr. O’Shea mistakenly identified him as the individual depicted in the advertisement.
• The claimant argued that this misidentification caused harm to his reputation by suggesting an association with the adult service.
• The courts accepted that the photograph did not actually portray Mr. O’Shea, and there was no intention or foreseeability on MGN’s part to cause mistaken identification.

Issues

1. Whether a publisher may be held strictly liable for defamation where mistaken identification of the claimant in a publication is purely coincidental and not reasonably foreseeable.
2. Whether the principles of defamation law require intent or foreseeability for the element of identification to be satisfied.

Decision

• The Court of Appeal held that MGN could not be held liable for defamation in the circumstances.
• Identification of Mr. O’Shea as the person in the advertisement was purely coincidental and unforeseeable by the publisher.
• Strict liability does not apply in defamation cases where identification is accidental and beyond the control or reasonable anticipation of the publisher.
• The court clarified that for liability to arise, the defendant must have intended or could reasonably have foreseen that the publication would lead to the claimant being identified.

Legal Principles

• For a defamation claim, the statement must be defamatory, refer to the claimant, and be published to a third party.
• The element of identification requires that the publication can reasonably be understood as referring to the claimant.
• Strict liability in defamation is limited; it does not extend to purely coincidental or unforeseeable identification.
• Liability for defamation should be based on foreseeability and reasonable anticipation, not on unintended or accidental resemblance.

Conclusion

The decision in O’Shea v MGN [2001] EMLR 943 confirmed that publishers are not strictly liable for defamation arising from purely coincidental and unforeseeable mistaken identification, emphasizing the importance of foreseeability in the law of defamation.