In this post, I continue setting out concerns with the Defamation Act 2013 by looking at the test for serious harm in section 1 of the Defamation Act 2013. There is no sensible objection to a seriousness threshold for a defamation claim. As the explanatory notes of the Act make clear, this is the current law.
However, the formulation of this threshold in section 1 of the Act is highly problematic. To understand why, it is helpful to have regard briefly to the judicial history of the seriousness threshold.
In Dow Jones & Co Inc v Jameel  EWCA Civ 75, the Court of Appeal stayed a libel action on the basis that the harm caused was so negligible that the action constituted an abuse of process. In the famous words of Lord Phillips, “The game will not merely not have been worth the candle, it will not have been worth the wick.” This was plainly a jurisdictional bar. In assessing the extent of the harm, the court could have regard both to the seriousness of the allegation in the statement complained of and to the extent of circulation of that statement.
In Thornton v Telegraph Media Group Ltd  EWHC 1414 (QB), Mr Justice Tugendhat held that for words to be defamatory, their meaning must have a degree of seriousness. Trivial allegations were simply not defamatory. (The allegation in question in that case was that the claimant, an author, gave copy approval to the subjects of her writing. It was held that this allegation had an insufficiently serious meaning to be defamatory.) Importantly, the judgment related to the harm caused by a statement solely due to the meaning of the words complained of. There was no regard to other factors which may affect the harm arising, most obviously the extent to which the statement was circulated.
Section 1 of the Act conflates these two principles. It now imports into the definition of “defamatory” a broad serious harm threshold, apparently to take into account not only the seriousness of allegation made but also the harm caused (or likely to be caused) by dissemination of the allegation.
This means that it is now not possible to determine whether a statement is defamatory until the extent of publication and the identity of the publishees is known. For example, even the most serious allegation would not cause or be likely to cause harm if published only to close friends of the claimant who did not believe them. At the moment of publication, such allegations would not therefore be defamatory under section 1. They would however, become defamatory if republished to other individuals who might believe them. However, they would cease to be defamatory if the republication was followed by a clear and persuasive statement of falsity. They might then become defamatory again if republished to someone without such a statement. Words might be defamatory on publication (because likely to cause harm), but then cease to be defamatory after wide circulation because the reaction of publishees was one of disbelief.
The result of this is that in contrast to the previous law (and the law in every other jurisdiction of which I am aware), it is not possible to assess before, or at the time of publication, whether a statement is defamatory simply by studying the words in question.
Beyond this confusion, a number of other immediate practical problems also arise.
Firstly, there could be a series of statements published, for example as part of a campaign, each of which is damaging (though insufficiently so to meet the serious harm threshold) which when taken together may be seriously damaging. Under the provision as drafted, it is hard to see how such a campaign would be actionable. Each statement would be judged on its own merits and deemed expressly by statute not to be defamatory. A collation of any number of statements deemed not to be defamatory individually cannot become defamatory together, regardless of the harm caused collectively by them.
Secondly, the term “defamatory” is widely used in contracts to refer to the nature of the meaning of the words in question. For example, a commissioned author may warrant that his or her work is not “defamatory”. Equally, the term is frequently used in statutes. To take one example, section 10 of the Legal Deposit Libraries Act 2003 provides an immunity to librarians when copies of works are made available. However, under section 10(2) this immunity is lifted if the librarian “knows … that the copy contains a defamatory statement”.
Hitherto, these principles would have required regard solely to the words themselves to determine their meaning. However, section 1 now requires a quite different interpretation of the word “defamatory” to take into account wider matters which may affect the harm caused, such as the circulation of the material. This could create untold uncertainty and complexity. At the very least, any sensible contract which includes a reference to material being “defamatory” should include the (rather cumbersome) wording “excluding the effect of section 1 of the Defamation Act 2013”.
There are four further issues with the formulation of section 1 as follows.
- It is unclear how one is to assess “serious financial loss” in respect of corporate defamations under section 1(2). In particular, is one to have regard to the size and resources of the company? If so, is it right that the same statement causing the same level of damage can be actionable by one company (if it is small) and not by another (because it is big)? That would mean that two companies of differing sizes could make the same allegations about each other and one could sue and the other could not. That seems unfair. Could a major company ever sue – or would it simply have to accept that it could be subject to all manner of allegations without legal remedy?
- It is unclear how section 1 operates where there is publication abroad as well as within the jurisdiction. Is this simply to be ignored when assessing the harm? If so, this seems unfair on claimants who wish to bring an action where the harm arising from the publication across the whole world in aggregate is serious but in any one country falls below the threshold. If the harm arising from publication abroad is to be taken into account, then how is this to be done and what regard should be had to whether the publication was lawful in the foreign jurisdiction?
- Section 1 relates solely to claims in defamation, leaving that cause of action at odds with its relatively close cousin, malicious falsehood, because an action for malicious falsehood may be brought without the need to prove special loss in the circumstances set out in section 3 of the Defamation Act 1952. Under this provision, such an action may be brought merely where the words are “calculated to cause pecuniary damage”, which appears to be a lower threshold than “likely to cause … serious financial loss”. There seems no reason for this discrepancy. As things stand, the wording of section 1 will simply channel potential claimants into malicious falsehood rather than defamation claims.
- The “likely to cause serious harm” test also creates significant issues. In particular, a statement may be published in circumstances such that at the point of publication it is likely to cause serious harm. However, it may be that in the event, no such harm comes to pass. Does that mean that it ceases to be defamatory? Or is it actionable because even though by the time of trial no serious harm was caused, at the time of publication it was nonetheless likely to cause serious harm?
The alternative proposal
Taking these points together, assuming that there is a need to put the seriousness threshold on a statutory footing, it seems most sensible to set this on a jurisdictional rather than a substantive law basis. This gives the court the ability to prevent defamation actions proceeding in respect of trivial allegations – including when they are made abroad and are subject to foreign law – and also gives the court the flexibility to allow cases where the seriousness threshold is met by the publication of multiple connected statements, or by publication across multiple jurisdictions.
A provision which establishes this and meets the concerns set out above could be achieved with the following amendments to section 1 of the Act:
Alternative proposed text
(1) A court has no jurisdiction to hear a claim in defamation or malicious falsehood in respect of A the publication of a statement is not defamatory unless its that publication – or that publication taken together with other statements published by the same person – has caused or is was at the time of publication likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body corporate that trades for profit is not “serious harm” unless it has caused or is likely to cause the body corporate serious financial loss.
(3) For the purposes of this section, where there is publication of the statement or statements abroad, account is to be given to the harm caused to the reputation of the claimant by that publication save where the publication would be lawful according to the law of the place of publication.
Dan Tench is a partner in the Litigation Department at Olswang LLP