Media & IP Law DT592: Defamation and Privacy in Fake Image Usage

This essay provides a detailed analysis of defamation and privacy issues arising from the use of photo-shopped images on an adult website, focusing on a case involving Irish celebrities. It examines whether the edited images can be considered defamatory under the Defamation Act 2009, considering elements such as falsity, unprivileged publication, and lowering the women's reputation in the eyes of society. The essay also explores potential defenses against defamation, including the defense of truth and consent, and discusses the possibility of legal action based on privacy rights under the Irish Constitution. The analysis includes relevant case law and concludes with recommendations for the women involved, suggesting they pursue legal action to combat the misuse of their images. The document provides a comprehensive overview of the legal considerations and potential outcomes in such cases.

Running head: MEDIA LAW
MEDIA LAW
Name of Student
Name of University
Author Note

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1. Defamation
Main issues
The primary issue in the current scenario is deciding whether the contents in the adult site
can be considered as defamatory towards the women whose images have been edited on to the
pornographic images. The tort of Defamation has been defined under section 6(2) of the
Defamation Act 20091 as to be consisting of publication of any defamatory statement, by any
means, which concerns one or more persons. The term ‘statement’ has been defined under
section 2 of Defamation Act 20092 as to be including any statement that has been made orally or
in writing; any kind of visual image, gesture, sound or any other significant method; any
statement that has been broadcasted on radio or television or has been published on the internet;
or any electronic communication which can be seen to be including information communication
in the form of data, sound, images or texts by the means of guided or unguided electromagnetic
energy or both.
To decide whether the edited pictures can be considered as defamatory the following
elements of defamation are also needed to be considered. They are:
1. Can the publication be considered as false and defamatory towards the women?
2. Was the publication of the pictures unprivileged? Or was the publisher of the pictures given
explicit permission for the publication of the pictures by the owner?
1 Defamation Act 2009, s.6(2)
2 Defamation Act 2009, s.2

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3. Whether the pictures would be lowering the women in the eyes of any right thinking
reasonable member of the society?
According to the judgment in the case Berry v Irish Times (1973)3 it was held that
although the statement was not true yet it would not be lowering Berry in the eyes of any right
thinking member of the society as the conviction of the criminals, according to the Supreme
Court, is considered as a public duty and any right thinking member of the society would be
approving of such action. It was held that the statement made against Berry was not defamatory.
Another case that can be taken into consideration in this context is Travers v Sunday
World (2016)4 where a defamation action brought by a bank worker questioned in connection to
‘tiger kidnapping’ was settled by the defendants. In the article published by the defendants a
photo of the plaintiff was used in which he was seen to be standing next to a Bentley and a
Ferrari.
In this essay a detailed analysis would be done for establishing whether the pictures could
be considered as defamatory and if they are found to be defamatory the defences that could be
seen appropriate for this case would also be analyzed in detail in the essay. The criteria for the
establishment of defamation would also be discussed.
Points to take into consideration
If the applicants become successful in the claims of defamation made by them it could be
costing the site using their pictures a huge sum of money. As per section 31 of the Defamation
Act 20095 directions can be given by the judges towards the juries for the level of the damages
3 Berry v Irish Times (1973)
4 Travers v Sunday World (2016)
5 Defamation Act 2009, s.31

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that are to be awarded for the distress, humiliation and hurt caused to the person because of the
defamatory statement. If it is found by the juries that the pictures are distasteful and could be
considered as defamatory statement, there could be harsher damages awarded by the jury, as was
seen in the case De Rossa v Independent Newspaper plc. (1999)6. It was observed in the case that
De Rossa was awarded an amount of £300,000 by the High Court juries. When appealed to the
Supreme Court it was stated by the Supreme Court that for awarding damage, the seriousness of
the defamation and the extent of the publication is needed to be considered. It was further stated
by the court that any detailed direction for the damages should not be given towards the juries
that could be interfering with the functions and independence of the juries.
An important aspect that needs to be taken into consideration in the case is whether the
statement made would be identifying towards the plaintiff. Even if the statement does not
explicitly mentions the name of the person who has been defamed, the description provided
would be enough for recognizing the person. As per section 6(3) of the Defamation Act 20097
any defamatory statement would be considered to be concerning a person if it could be
reasonable to be understanding that the statement had been referring to him. This was the case in
Browne v Independent Newspaper (1991)8. In the case an article about the corrupt planning
officials was published along with reference to ‘Builder John Browne’ which was stated as a
fictitious name a several columns later. The plaintiff was a builder named John Browne who
claimed that he had been defamed. The plaintiff was awarded £75,000 on the grounds that it is
not necessary that any reasonable person would be reading an entire long article to find that the
name had been fictitious.
6 De Rossa v Independent Newspaper plc. (1999)
7 Defamattion Act, s.6(3)
8 Browne v Independent Newspaper (1991)

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In the current scenario it can be seen that the pictures were identifiable as the faces of the
women were visible. Further the pictures had been edited on to the pornographic images. So the
pictures that had been published in the site had been reasonable enough to be recognizable as to
be referring to the women in question.
Another aspect that needs to be considered is whether the site would be protected under
the principles of the Qualified or Absolute Privilege. Qualified Privilege can be described as a
defence for a person under a legal or moral duty for making any statement that can potentially be
defamatory if it is not true. Generally there is a very limited application towards the libels of the
media as there is rarely any duty for the media to be reporting any information. The qualified
privilege of the common law had been developed by the court where it has been recognized that
the media reporting on serious matters concerning the public in a responsible way could be seen
to be eligible for having such privilege. As per the provisions of section 18 of the Defamation
Act 20099 significant changes have been made in listing in the statements in the schedule 2
having qualified privileges “without explanation and contradiction” and a statement schedule
having qualified privilege with explanation and contradiction”. In the case Talbot v Hermitage
Golf Club (2014)10 it was held by the court that the club had qualified privilege re limited
publication of alleged defamation.
However in this case it is unlikely that the court would find any responsible reporting by
the site. The site is an adult site containing images of unsuspecting women that had been edited
on pornographic images. This can never be considered as a true statement neither it can be
considered as any responsible reporting.
9 Defamation Act, s.18
10 Talbot v Hermitage Golf Club (2014)

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Defence against defamation
As per section 16 of the Defamation Act 200911 the ‘defence of truth’ has been referred. It
can be seen as a defence that the defendant needs to prove that the statement for which the
complaint had been made was “true in all material respects”. For defence in defamation the
burden of proof always lie on the defendant. The most basic and difficult defence is the defence
of truth. If the defendant is seen to be using it as a defence and the statement in fact turns out to
be false the juries can be seen to be increasing the damages as the justification defence was seen
to be repeating the defamation. In the case Archer v Daily Star (1987)12 it was seen the defendant
tried to be relying on the justification defence in the action of the plaintiff regarding the
allegations that he had paid for sex to a prostitute. With the failure of the defence punitive
damages had been awarded by the court against the paper for the repeating of the allegations in
the court.
In the current case it is unlikely that the owners of the site would have any defence of the
truth.
Under section 25 of the Defamation Act 200913 the ‘defence of consent’ is present which
states that the publication of the complained statement was done with the consent of the plaintiff.
The plaintiffs would not be able to sue if they had consented for the publication of the statement.
The evidence for the consent should be unequivocal and clear. However it is not possible that the
women would be consenting in the publication of their images being photoshopped and used on
a site containing adult contents and which attracts disturbing comments from the users.
11 Defamation Act, s.16
12 Archer v Daily Star (1987)
13 Defamation Act 2009, s.25

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Section 22 of the Defamation Act 200914 mentions “a person who has published a
statement that is alleged to be defamatory of another person may offer to make amends”. The
offer for making amends mean making suitable correction of the concerned statement and
providing with a sufficient apology towards the person to whom the statement had been referring
to, publishing both the correction and the apology in a reasonable and practicable way and
paying damages and other costs in a sum that is agreed upon or has been determined by the
parties.
Recommendations
In conclusion to the above discussions it can be seen that the photo-shopped images
would be considered as defamatory towards the women as the pictures were both untrue and
defamatory towards the women. The pictures were further seen to be published in a unprivileged
way without any kind of explicit permission of the women. The pictures were edited on to
pornographic images which if seen by any right thinking reasonable members of the society
would lower the image of the women. Further it is seen that the defendants, that is, the owners of
the adult site where the pictures of the unsuspecting women were published do not have many
defences for them. The only defence they can use is offering to make amends with the women
whose pictures have been published. However it is completely upon the decisions of the
plaintiffs if they want to settle the claims or carry on with the case. It can be advised to the
women to be continuing with the case to make sure that legal actions are taken against these type
of sites that use the pictures of unsuspecting women and superimpose them to use those pictures
for their own benefit by defaming the women.
14 Defamation Act 2009, s.22

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2. Privacy
Issue
The second issue that can be raised in relation to the current case is whether any possible
legal action in privacy can be available to the women who are involved.
There is no direct Irish law for the protection of the right to privacy of any individual for
the coverage of true statements. If an invasion of the privacy can be seen to be involving untrue
statements then defamation can be used as action for the invasion of such privacy. However the
limited yet best protection towards the privacy of any person can be guaranteed under the
Constitution of Ireland 1937. As per Article 40 (3.1)15 “The State guarantees in its laws to
respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the
citizen.” As per Article 40 (3.2)16 “The State shall, in particular, by its laws protect as best it
may from unjust attack and, in the case of injustice done, vindicate the life, person, good name,
and property rights of every citizen.”
As the right to privacy is an emerging right in the law of Ireland, hence it has been
categorized as unspecified right under the provisions of Article 40 of the Constitution of Ireland
193717. In the case Kennedy and Arnold v Ireland (1984)18 a specified right to privacy was
established regarding political correspondents having their phones tapped by the Minister for
Justice. However, it was pointed out by the President of the High Court that the Constitutional
right to privacy is not unlimited, and is subject to the Constitutional rights of the others, and
public order, morality and the common good.
15 Constitution of Ireland 1937, Art.40(3.1)
16 Constitution of Ireland 1937,Art 40(3.2)
17 Constitution of Ireland 1937,Art.40
18 Kennedy and Arnold v Ireland (1984)

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Privacy
In the case it was see that the women in question Miriam O'Callaghan, Claire Byrne,
Kathryn Thomas, Lucy Kennedy, Jenny Greene, Vogue Williams, Nuala Carey, Colette
Fitzpatrick and Anne Cassin found out that they had been among the hundreds of unsuspecting
women whose image had been edited on to pornographic images. For establishing defamation
the plaintiffs need to be establishing that the pictures would be lowering them in the eyes of right
thinking reasonable members of the society. Only social embarrassment would not necessarily be
constituting a defamatory action as was seen in the case of Dinnegan v Ryan. For proving that
there had been a breach of the right to privacy of the plaintiffs the plaintiffs need to be proving
that the breach was deliberate and not out of negligence. In the case Sinnot v Carlow Nationalist
Ltd (2007)19 where the Carlow Nationalist was seen to accidentally publish a photograph of the
plaintiff footballer where his private parts had been visible. The Circuit Court awarded Sinnott
€6,500 damages for breach of privacy, intentional infliction of emotional harm and negligence.
The newspaper appealed to the High Court in 2008 where the finding of negligent breach of
privacy was upheld, and damages were increased to €11k. This case is considered important
because it does not include deliberate breach of privacy by the state, which had been the main
issue in previous successful cases.
In the case Herrity v Associated Newspapers Ireland Ltd (2008)20 it was seen that the
Ireland on Sunday had published taped phone conversations that had been held between the
plaintiff and a Catholic priest, concerning the breakdown of her marriage. The calls had been
illegally taped by the estranged husband of the plaintiff, and he had given to the newspaper
because he was “motivated by revenge”. The High Court held that the paper had made a
19 Sinnott v Carlow Nationalist Ltd (2007)
20 Herrity v Associated Newspapers Ireland Ltd (2008)

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“deliberate, conscious and unjustified breach” of the plaintiff’s constitutional right of privacy.
Ms Herrity was awarded €90k damages, including €30k punitive damages. Punitive damages
were awarded because the material published had been obtained illegally.
In the case Campbell v Mirror Group Newspapers (2004)21 it was ruled by the Lords, for
the 2001 case in which the High Court awarded £3,500 to Naomi Campbell for breach of
confidence and data protection against Daily Mirror, that the Daily Mirror has invaded her
privacy by printing the story with accompanying photographs. The court held that the paper had
the right of reporting that Campbell was a drug addict and had been seeking treatment, but it had
no right to say what treatment or to be publish a photograph of her outside the meeting. This case
was dealt with under the English law, but it is considered by many to be creating a de facto right
of privacy. The original court order of £3,500 damages was reinstated, but the paper was seen to
be liable for costs of over £1 million.
An important issue in the case is whether the defendant can be providing hyperlinks to
defamatory images and what the criteria is available for publication under the Defamation Act
2009. If there is a valid case for defamation against the photographs in question the defendants
would be liable even if they merely placed hyperlinks in their site as hyperlinks are seen to be
giving access of information to the people viewing the site. If the defendants can prove that the
photos do not qualify as defamatory then they have to making sure that the permission of the
owners of the pictures are available to them in a written manner. In the case Svensson and Ors v
Swedish Retriever22 it has been stated that sharing a hyperlink can constitute a breach of
copyright.
21 Campbell v Mirror Group Newspapers (2004)
22 Svensson and Ors v Swedish Retriever

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Reform of law
In the year 2008 the Press Council of Ireland had been established and the first
Ombudsman was seen to be appointed. As per the Code of Practice for Newspapers and
Periodicals23-
 Privacy is a human right that has been protected in the Irish Constitution and the
European Convention on Human Rights which is incorporated into Irish law as a
personal law. The private, family life, home and correspondence of everyone
must be respected.
 Public persons are entitled to right to privacy. However, when a person is seen to
be holding public office, dealing with public affairs, following a public career, or
seeking or obtaining publicity for his activities, publication of relevant details of
his private life and circumstances may be seen as justifiable where the
information revealed relates to the validity of the person’s conduct, the credibility
of his public statements, the value of his publicly expressed views or is otherwise
in the public interest.
 Taking photographs of individuals in private places without their consent is not
acceptable, unless justified by the public interest.
Advice
There is no direct Irish law for the protection of the right to privacy of any individual for
the coverage of true statements. If an invasion of the privacy can be seen to be involving untrue
statements then defamation can be used as action for the invasion of such privacy. However the
23 Code of Practice for Newspapers and Periodicals

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limited yet best protection towards the privacy of any person can be guaranteed under the
Constitution of Ireland 1937. In this case the pictures that had been published were seen to be
untrue and defamatory towards the unsuspecting women whose pictures were superimposed to
be using them on the adult sites. Hence their privacy would be protected under the Defamation
Act 2009 and the Constitution of Ireland 1937. If the women can prove that there was no consent
given by them to publish their image or even use hyperlinks of the real images they can be
claiming for damages for the breach of their privacy along with the charges of defamation.
3. Copyright
Issue
The third issue in the case is if the women who had been featured on the website have
any possible legal action in the law of copyright.
` Under the provisions of Article 40(3.2) of the Constitution of Ireland the Copyright
towards the work of any person is seen to be protected. As per Article 40 (3.2)24 “The State shall,
in particular, by its laws protect as best it may from unjust attack and, in the case of injustice
done, vindicate the life, person, good name, and property rights of every citizen.”Copyright can
be seen as involving the exclusive rights for the use of a person’s work and the right for stopping
anyone from destroying such work. In Ireland the copyright of the work of any person is
managed under the provisions of The Copyright and Related Rights Act 2000. Generally when
an original image is created the right to the image is automatically seen to be owned by the
owner. If the image is used without the consent of the owner it would be the infringement of the
copyright.
24 Constitution of Ireland 1937,Art 40(3.2)

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Under the provisions of Copyright Act 2000, a person who commissions photographs and
films for private and domestic purposes, has no right for having them available to the public.
Making such photographs available to the public is seen as a breach of copyright.
In the case Photocall Picture Agency Ltd. v Folens Publishing Co. Ltd [1998]25 it was
seen that the publishers used a photograph on the front cover of their journals without the conset
of the owner of the copyright of the picture. An apology was made by the publishers for the same
in front of the High Court.
In the case Norowesian v Arks [1999] an advertisement of Guinness was not considered
as a breach of copyright because it was found to be a completely different expression of the
plaintiff’s concept. It was held by the court the copyright to the idea of the photographs might be
belonging to the employees but the copyright for the expressions of the same is not. The court
further held, with the assumption that the employees are the legal owners of the photographs,
that the company has the right to be using the concept of the photographs on their other products.
In this case the right to the pictures were seen to be lying to the women and the website
used those pictures without the consent of those women. Further they had been using those
images in a defamatory way thus there has been infringement of copyright with the violation of
right to the privacy and defamation.
Advice
The women whose pictures had been used are eligible to be claiming damages against the
website for the infringement of their copyright as they have the rights over their images which
had been used without their consent in a defamatory way and by invading their privacy by way
25 Photocall Picture Agency Ltd. v Folens Publishing Co. Ltd [1998]

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of false statement. In this case the pictures that had been published were seen to be untrue and
defamatory towards the unsuspecting women whose pictures were superimposed to be using
them on the adult sites. The pictures used were the personal properties of the plaintiffs and hence
they have a copyright to the images. If the women can prove that there was no consent given by
them to publish their image or even use hyperlinks of the real images they can be claiming for
damages for the infringement of copyright, breach of their privacy along with the charges of
defamation. The women would be able to claim a large sum for the compensation for damages.