Defamation Act and the test of serious harm
The author is a specialist in the law of privacy and media law and his articles have appeared in the Internet law Journal, European Journal of Law and Technology, EU Sports Review – A Legal Commentary, and the International Sports Law Journal. He can be reached at firstname.lastname@example.org.
The tort of defamation has had its threshold increased for actions brought by claimants who have suffered harm to their reputation which has lowered their esteem in the eyes of the reasonable members of society. The Defamation Act 2013 has introduced profound changes in the law and, in addition to restricting access to the courts of England and Wales for claimants residing outside of the UK or EU/Lugano Convention states,[i] has made litigation more substantively onerous for claimants. The Act has introduced the test of serious harm to the person’s reputation under section 1(1) which provides that a statement is not defamatory of an individual “unless its publication has caused or is likely to cause serious harm to the reputation of [that person]”. The requirement for businesses to establish damage to reputation is covered under section 1(2), where a body that trades for profit has to show the publication of the statement has caused or is likely to cause the body “serious financial loss”, thereby continuing the common law distinction between business corporations and public bodies such as local authorities.[ii]
The serious harm condition is in addition to the requirements that the statement was false, that it made the claimant identifiable (whether explicitly or not), and that it carried a meaning that adversely affects the attitude of other people towards them. This has to be proven to the civil standard of a balance of probabilities. The court has a discretion to order a trial by jury under section 11 of the Act, and the judge can order one if the litigation does not involve complicated documentary evidence which the lay jury will find difficult to evaluate.
The Defamation Act has retained the difference between liability for a wrongful oral statement (slander) which requires proof of ‘special’ harm which causes some type of economic or pecuniary loss, unless the slander falls into one of the ‘special’ categories: allegations of a crime or criminal conduct; allegations that the person has a loathsome disease; allegations that attack the person’s professional standing; or implications that the person is immoral or unchaste when it is actionable per se. Written defamation (libel) arises upon publication, and the plaintiff’s loss of reputation is not enough by itself in proving special harm, nor is emotional distress considered special harm even if it causes physical illness. While special harm does not have to possess a direct monetary value, it must be a benefit that has at least an indirect monetary value to the plaintiff. The loss could be companionship or association with friends, or loss of connection with society in general, if the loss of any of these is such that it can be given monetary value. Furthermore, once special harm is proven, a plaintiff can collect on damages for emotional distress as well.[iii]
The Act has not changed the common law presumption of damage but has simply raised the threshold from “substantial harm” to “serious harm”. The plaintiff must show that the harm was caused by the defamation and that it came about because of a reaction by or the behaviour of someone other than the defamer and the defamed to the publication. The context of the publication is all important, including factors such as the extent of publication in England and Wales and the likelihood that those reading the allegations will take them seriously. There is debate on the interpretation because the claimant has to establish the first aspect of section 1 (‘has caused’), the nature of which is not specified by the Act, and the question may require proof on the evidence or the court may be invited to infer serious harm to the reputation of the claimant from the nature of what has been alleged about them.
In Lachaux v Independent Print Ltd[iv] there were a number of libel actions were brought by a French aerospace engineer, Bruno Lachaux, working in the UAE, relating to five articles published between 20 January and 10 February 2014 in newspapers published in the UK – The Independent, London Evening Standard and the Huffington Post. The articles concerned incidents that had taken place in the UAE, and there were four preliminary issues: (1) whether the extent to which the words complained of referred or could be understood to refer to the claimant; (2) the natural and ordinary meaning of the words complained of; (3) whether the publication of the words complained of satisfied the “serious harm requirement” laid down by Section 1(1) of the Defamation Act 2013; and (4) whether the pursuit of the claim constituted an abuse of the court’s process.
This required consideration of a number of legal arguments concerning the applicable principles. The first of these was the question of “reference” to the claimant, which is an essential element of the cause of action. The applicable test was whether the words would be understood by reasonable people to refer to the claimant. Warby, J stated :
If the words would be so understood by such people it is not necessary for the claimant to prove that there were in fact such people, who read the offending words; so an individual defamed by name in Cornwall has a cause of action even if he was unknown in that county at the time of publication.[v]
He rejected the submission that a claimant has to prove that at least one person understood the words complained of to refer to him. Secondly, the judge considered the meaning of the “serious harm” requirement in section 1(1) and he rejected the claim that it was directed solely to the quality of the meaning conveyed by the words complained. This implies that the provision is designed to exclude trivial claims by adjusting the definition of “defamatory” to upgrade the harmful effect required to surmount the threshold of seriousness from ‘substantial’ … to “serious”. The Judge held:
The intention was that claimants should have to go beyond showing a tendency to harm reputation. It is now necessary to prove as a fact on the balance of probabilities that serious reputational harm has been caused by, or is likely to result in future from, the publication complained of. [vi]
After considering the words used and the common law background, he concluded that, “…the serious harm requirement is capable of being satisfied by an inferential case, based on the gravity of the imputation and the extent and nature of its readership or audience”.[vii] Overall, his conclusion on the “serious harm” issue was:
The court is not confined, when deciding this question, to considering only the defamatory meaning of the words and the harmful tendency of that meaning. It may have regard to all the relevant circumstances, including evidence of what has actually happened after publication. Serious harm may be proved by inference, but the evidence may or may not justify such an inference.[viii]
The Judge ruled that it was not necessary to determine the question at the time from which a statement “is likely to” cause serious harm, and that he favoured the time “at which the issue was determined” rather than the “time of issue”.[ix]
The third legal issue concerned the question as to whether, in considering the issue of serious harm, a defendant is entitled to rely on other publications to the same or similar effect. The defendants sought to rely on the decision in Dingle v Associated Newspapers [x], in which it was held that, at common law, other publications to the same effect as the words complained of or relating to the same incident, are inadmissible in relation to the assessment of general damages for injury to reputation. The Judge accepted the claimant’s argument that, in this new legal context adherence to the limits set by Dingle was perhaps more likely to hold the scales evenly between the parties than it did in the past. There would be some room for complaint by claimants if defendants were now permitted to put in evidence of other defamatory publications and, without more, invite an inference that these had caused serious harm to reputation. The position of a defendant would approximate to that of a claimant under the previous law.[xi]
Warby J ruled that the defamatory meanings were serious, the articles were meant to be taken seriously and the publishers were reputable. The newspaper articles had substantial circulation and readership, both in print and online. In all the circumstances, all the articles but one had caused serious harm to the claimants’ reputation, the exception being the second Huffington Post article. This is a landmark judgment in this area of law and it has clarified the meaning of “serious harm” in the Act.
The Defamation Act 2013 has also made substantive changes to the defences available under the law. The defences of justification in section 5 and fair comment in section 6 of the Defamation Act 1952 have been abolished, and instead the 2013 Act promulgates the defence of truth (section 2) and the defence of honest opinion (section 3). Additionally, section 4 has established a defence of publication in the public interest by abolishing the common law defence of ‘Reynolds’ qualified/ journalistic privilege.
The common law defence of qualified privilege has been retained by section 6 of the 2013 Act, which provides that peer reviewed statements (published papers) in scientific or academic journals are protected if they relate to relevant subject matter. Furthermore, section 7 extends the scope of section 14 of the Defamation Act 1996 to international courts, providing for absolute privilege to fair and accurate reporting of legal proceedings in the UK, the European Court of Human Rights and the European Court of Justice.
Some provision has been made for defending claims relating to the internet and defamation in the electronic media. Section 5 of the 2013 Act has established a defence for operators of websites in order to protect internet service providers such as Google from being held liable if they take steps to delete the publication. This has been augmented by the section 8, which establishes a single publication rule and ends the indefinite liability of internet publications. Under the previous law, an online article was considered to have been published every time it was accessed by a reader.
With all of that, the most important criteria of the Defamation Act 2013 is the requirement of serious harm. This is dependent on the context of the damage to reputation suffered by the claimant and the harm suffered as a consequence of the wrongful statement. The courts have established as a fundamental principle that damage is to measured at the point at which the issue of serious harm was determined – ie when the defamatory statement began to take effect rather than when it was actually made. This could allow the interim period to be not included in the compensation award, and is intended to discourage the serving of causes in action in defamation unless harm is actually suffered.
[i] Defamation Act 2013 section 9.
[ii] See Derbyshire County Council v Times Newspaper Ltd & others  AC 534 547 (HL).
[iii] See Williams v Riddle, 145 Ky 459 140 SW 661 (1911).
[iv]  EWHC 2242 (QB).
[v] ibid (2).
[vi] ibid .
[vii] ibid .
[viii] ibid .
[ix] ibid .
[x]  QC 371.
[ix] Lachaux (n iv) .