Defamation: A serious consideration of “serious harm”


02-08-2019
Lady justice statue with books

The Supreme Court hands down a seriously remarkable ruling whilst considering for the first time the meaning of section 1 of the Defamation Act 2013. Mohammed Husnain Ali  of Hewitsons discusses the issues.

Lachaux v Independent Print Ltd and Evening Standard Ltd [2019] UKSC 27

The Defamation Act 2013 was introduced to reform the realms of defamation law which were previously moulded primarily by common law. Under common law, a presumption was made that harm had been caused to a claimant’s reputation following a defamatory statement. However, Section 1(1) of the Act relates to the new statutory requirement that a defamatory statement must cause "serious harm" (as opposed to merely just harm) to a claimant's reputation:

"A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant."

Background:
In this case, the publishers of two British newspapers appealed against a decision that articles published by them caused, or were likely to cause, serious harm to the respondent's reputation within the meaning of the Defamation Act 2013 s.1(1).

Here, the respondent was a French aerospace engineer who had been living in the United Arab Emirates with his British wife and their young son. When the marriage broke down, he began divorce proceedings in the UAE courts and was awarded custody of his son. 

Later, in early 2014 the publishers ran articles which reported allegations about the respondent's conduct towards his wife including violence and abuse towards during their marriage, hiding their son’s passport to stop her from removing him from the UAE, had made use of UAE law and the UAE courts to deprive her of custody and contact with her son as well as callously taking possession of their son and later falsely accusing her of abducing them. He initiated libel proceedings and, at a "meaning hearing", the judge held that the articles bore eight defamatory meanings, including that the respondent had been violent and abusive towards his wife and had taken their child from her. Nevertheless, the publishers argued that the articles were not defamatory because they had neither caused nor were likely to cause serious harm to the respondent's reputation within the meaning of s.1(1).

Court judgment:

High court and Court of Appeal:
Mr Justice Warby at first instance rejected the respondent's submission that s.1(1) simply added to the common law rule, that libel would be made out if the words had an inherent tendency to cause some injury to reputation, a requirement that the inherent tendency had to be to cause "serious harm" to reputation. Instead, he substantially accepted the publishers' argument that s.1(1) inserted an additional requirement that the words complained of should in fact result in serious harm. However, finding that the articles did cause serious harm, he found for the respondent. The Court of Appeal preferred the respondent's construction of s.1(1), but upheld the judge's finding of serious harm.

Supreme Court:
The Supreme Court unanimously dismissed the appeal with Lord Sumption providing the leading judgment by considering:

Interpretation of s.1(1): 

The court considered that section 1 of the Act not only raises the threshold of seriousness from previous case law but also requires its application to be determined by reference to the actual facts and its impact, not merely the meaning of the words. The reasons provided were as follows:

  1. The Act unabashedly and unapologetically altered the common law, so the least that section 1 achieved was to introduce a new threshold of serious harm which did not previously exist. A statement that would previously have been regarded as defamatory because of its inherent tendency to cause some harm would no longer be so regarded unless it had caused, or was likely to cause, serious harm. It depended on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated.
  2. Secondly, s.1(1) had to be read with s.1(2) which, in relation to statements said to be defamatory of a body trading for profit, adopted the serious harm test and provided that there had to be "serious financial loss". That loss was not the same as special damage, but was the measure of the required harm and had to exceed the threshold of seriousness.
  3. Finally, s. 1(1) includes the words “has caused” which refer to the consequences of the publication, specifically historic harm. This is a factual matter which must be established by reference to the impact of the statement. It depends on a combination of the inherent tendency of the words and their actual impact on the recipients. The words “likely” to be caused naturally refer to probable future harm. If past harm may be established as a fact, Parliament must have assumed that future harm could too.

Application of s.1(1):

The conclusion of the first instance decision that the articles had caused or were likely to cause serious harm was based on the scale of the publications; the gravity of the statements; the fact that they had come to the attention of at least one person in the UK who knew the respondent; and the fact that they were likely to come to the attention of others who either knew him or might come to know him in future. It was thus based on a combination of the meaning of the words, the respondent's situation, the circumstances of publication, and the inherent probabilities and thus, on the facts the Supreme Court largely adopted Warby J’s approach, concluding that there was no error in the “serious harm” finding.

Commentary:

This case highlights that it will now be necessary for claimants to consider to whom the statement was actually communicated, and more specifically the impact of that communication, in order to assess if serious harm to reputation has been caused. It will simply not be enough for claimant’s to rely solely on the character of the words alone as a weapon when bringing a claim.

The decision also provides necessary stead for journalists and the wider public with confirmation on how the courts are inclined to now interpret the Defamation Act and primarily s.1(1) and as such when one is making a statement of a defamatory nature, we must ask ourselves if it is likely to be held as one causing serious (enough) harm.

For more information please contact Mohammed Husnain Ali on 01223 461 155 or click here to email.

 

We pride ourselves on delivering an outstanding service to a wide range of individuals, businesses and institutions including charities, educational and sports bodies. The firm’s size and breadth of specialisms means each client receives the focus it requires.

We operate UK wide and have worldwide reach via our network of independent law firms, LawExchange International.

Hewitsons