Libel & innuendo: unauthorised use of image in advertisements

Martin Lewis v Facebook Ireland Limited

Perhaps the most widely-known consumer finance expert in the United Kingdom, Martin Lewis, has issued proceedings against Facebook Ireland Limited after numerous advertisements for ‘get rich quick’ schemes appeared on Facebook, all featuring the claimant’s face and name, all without his permission.

There is unlikely to be little dispute between the parties on the facts: Mike Schroepfer, Chief Technical Officer for Facebook, admitted to Parliament’s Digital, Culture, Media and Sport Committee last week that thousands of such adverts had been detected.  There is no question that Martin Lewis’ image was appropriated by the advertisers without his permission.  Instead the dispute will centre on (1) whether Facebook (or for that matter any digital publisher) has liability for the content of such advertisements, especially when ‘on notice’ of such content; and (2) whether Martin Lewis was defamed by his inclusion in the advertisements.

The first issue is a thorny one: no two publishers are the same and few enjoy the resources that Facebook have. If all publishers that host algorithm generated advertisements are to be liable for their content even if they have not previewed them it would disproportionately affect the smaller publisher (and deny many a crucial stream of income). Conversely, from the individual’s perspective, where someone is subjected to a sustained campaign it cannot be fair to continue to insist that publishers are ‘innocent’ until alerted, since it places a truly onerous burden on the individual in a never-ending un-amusing game of reputational Whac-A-Mole.

On the second aspect of his claim, whether he was defamed, Lewis pleads innuendo, i.e. the publication would not normally be considered defamatory but for extrinsic facts: ‘His reputation is built upon the fact that the information, help, tips and guidance he gives to consumers on financial matters is based on independent journalistic research, not financial inducements offered by the providers of financial services and products.  He does not appear in adverts for third party financial services and products’. Some readers might recall Lewis’s 2006 campaign to end the normalisation of secured debts via the use of credible celebrity endorsements, for example, or be aware of his careful explanations on the MoneySavingExpert.com website about his independence. The difficult part of an innuendo claim is evidencing that the special facts were known to at least one of the recipients of the advertisements.

On both issues, the claim is one we’ll continue to watch with interest.