UK: Mistaken Identity And Defamation: How To Reduce The Impact Of A Damages Claim

Last Updated: 5 August 2007
Article by Louise Prince

Originally published in The In-House Lawyer, Aprii 2007

Many publishers of fictional books assume that the classic phrase ‘any similarities to actual persons, living or dead, or to any actual events, firms, institutions or other entities, is coincidental and unintentional’ will protect them if a claim of defamation is made against them. This is not correct. The simple fact of the matter is that if members of the public associate a character in a book with a real-life person, even if that is not the intention, then they may be subject to a claim if an association can be made and defamatory allegations are published. Below are two examples of publishers that have faced such claims.


Arcadia Books Ltd published a novel by Lady Colin Campbell entitled Empress Bianca, which millionaire socialite Lily Safra claimed was defamatory of her. Shortly after receipt of the letter of complaint from Safra’s lawyers, Arcadia Books Ltd decided to pulp copies of the book rather than incur the time and costs of defending a legal action.


Johnny Come Home was published by Hodder & Stoughton Ltd and written by Jake Arnott. The book contained a character called Tony Rocco who was said to be a popular music manager famous for having had a hit single in the 1960s. Rocco was depicted in the book as having a reputation for being a ‘predatory pederast who lusts after teenage boys’. Real life singer Frederick Were, who has performed under the stage name Tony Rocco, claimed that readers of the novel who were familiar with him would have understood the character in the book to refer to him. The defendants subsequently apologised for the distress and embarrassment caused to Frederick Were and confirmed that the character of Tony Rocco in the novel was not intended to depict Frederick Were or refer to him, and bore no relation to his personal life. As well as paying a substantial sum in damages and legal costs, the publishers also agreed to endeavour to recall all copies that included the character and to change the name of the character in all future reprints of the book.


If a mistake is made, it is important to consider what action can be taken after the event to make amends and, perhaps more importantly, to reduce a claim for damages. First, as soon as a complaint is made and there is a suspicion, even a small one, that there is any merit to it, then attempts should be made to immediately recall all copies of the book. Secondly, if the company has insurance, the insurers should be notified immediately. Thirdly, everyone connected with the book, including the author, should preserve all documents that they have relating to the book, including draft manuscripts.


If it transpires that a mistake has been made then it is more than likely that the legal advice given will be to make an offer of amends under s2 of the Defamation Act 1996. This is essentially an offer to make an appropriate apology, to pay an appropriate sum in damages and to pay the claimant’s reasonable legal costs. The speed with which an apology is published is one of the factors that the court will take into account when considering the issue of damages.


Research from Sweet and Maxwell for 2005/06 reveals that the offer of amends procedure has been used in 38% of reported defamation cases. This is an increase of 17% on the figures for 2004/05. Although the procedure has been used many times since its introduction, there has only been a handful of cases where the parties have not been able to agree the appropriate sum of damages and it has been left to the court to assess the appropriate sum. In many of these cases, the publication, or even the offer, of an apology can provide a discount of between 33.3% and 50%, depending on the circumstances and wording of the apology.

In the case of Angel v Stainton and another, the agreement of the defendants to the publication of a statement in open court was recognised by Eady J as a factor that helped to reduce the discount to 40% of £40,000, giving a damages figure of £24,000. The discount would have been higher in this case had the defendants not aggravated the damage that had been caused by referring to matters that were clearly not appropriate. In the case of Veliu v Mazrekaj and another, which is the most recent reported case on the assessment of damages following an offer of amends, a discount of one-third of £180,000 was given to Mazrekaj to reflect the quick apology that was agreed by him, giving a damages figure of £120,000.

In an ideal world, cases of mistaken identity would never arise. Unfortunately, we do not live in an ideal world. If a mistake is made, it is important to seek legal advice at a very early stage from either the inhouse lawyer at the publishers or a firm of solicitors that has specific expertise in this area.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.