Trumpeting the Defamation Act 2013 when it received Royal Assent, the Ministry of Justice publicised section 1(1) of the Act, which provides that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant“, established “a requirement for companies and individuals to show serious harm to establish a claim“. The Act, according to Lord McNally, represented “the end of a long and hard fought battle to reform the libel laws in England and Wales”.
In its 2011 report, the Joint Committee on the Draft Defamation Bill indicated that the new threshold was necessary to strengthen the law and that it was essential to make sure that the issue was determined at an early stage in proceedings, notwithstanding the “front-loading” that would come with this. The potential impact of the publication of a rapid correction or apology or notice on an article in preventing serious harm from being caused was recognised.
The meaning and application of section 1(1) has been considered in a handful of cases since coming into force on 1 January 2014, with a meandering path being drawn by the judiciary as to how and when the issue should be determined and the nature and extent of evidence that may be required, with a leaning toward serious harm being determined as a preliminary issue with evidence being called.
The Court of Appeal has now handed down judgment in Lachaux v AOL (UK), Independent Print Ltd & Evening Standard Ltd  EWCA Civ 1334, indicating that rather than a wholesale reform of the law, the serious harm threshold represents a mere revision of the principle established in Thornton v Telegraph Media Group Ltd  EWHC 1414 (QB) that in order to be defamatory a statement must surpass a threshold of seriousness, being a tendency to cause substantial harm. S1(1) therefore only requires there to be a tendency for the publication to cause serious harm.
The case of Lachaux concerned separate actions in respect of publications in 2014 by the Huffington Post, the Independent and the Evening Standard which, variously, suggested that Lachaux was guilty of domestic violence and abuse, child abduction, fabricating false allegations against his former partner and manipulating the Emirati legal system to unjustifiably deprive his former partner of access to their child. The Claimant attributed the publications to a campaign against him by his former partner. The Huffington Post removed its article and published an apology a number of months later, when it received the Claimant’s complaint.
The readership of the two Huffington Post articles was around 4,800 and between 154,000 and 232,000 for the print copies of the Independent articles, with 5,655 unique visitors online, and between 523,000 and 785,000 for the print copy of i. The Evening Standard’s readership figures were between 1.67 million and 2.5 million for the print edition and 1,955 unique online visitors.
First instance decision
At first instance, trial was directed of the preliminary issue of whether the publications had caused or were likely to cause serious harm to the Claimant’s reputation, as well as in relation to the meaning of the publications and, in relation to the Huffington Post, whether the proceedings were an abuse of process.
Warby J held that s1(1) required a claimant to prove on the balance of probabilities that a statement had caused or was likely to cause serious harm, thus displacing the principle that libel was actionable without proof of damage. In making its determination the court could have regard not only to the meaning of the statement and the harmful tendency of that meaning, but also to all relevant circumstances including any evidence of what in fact happened.
Warby J considered that while an inference of serious harm might be drawn, that may not be justified by the evidence and where an issue of whether serious harm was raised it would usually be preferable to deal with that as a preliminary issue.
The obiter view was expressed that, by contrast with the view of Mr Justice Bean in Cooke v MGN, the time at which the threshold must be surmounted was at the time when serious harm is determined rather than when the claim was issued.
Applying those principles, all but the second Huffington Post article were held to pass the serious harm threshold.
The Defendants appealed against the findings that all but one of the articles complained of passed the serious harm threshold, leading the Claimant to argue that Warby J had failed to properly interpret and apply s1(1).
Giving the judgment of the court, Davis LJ dismissed as being undesirable the reliance upon comments by Ministers in evidencing the intentions of Parliament in enacting section 1(1).
He concluded that the words “likely to cause” in section 1(1) should not be understood as requiring a claimant to prove that it was more likely than not that serious harm would be caused, but rather that the words connote a “tendency” to cause serious harm.
He rejected Warby J’s finding that the presumption of damage had been abolished, which he considered was not clearly intended by Parliament, but did find that a raised threshold of harm was nevertheless compatible with the presumption of damage.
He considered that the point at which harm to reputation occurs would ordinarily be at the point of publication.
In relation to the need to prove serious harm, Davis LJ held that a preliminary hearing would not usually be necessary and it would be more appropriate, and indeed fairer to a claimant, for the issue to be resolved at trial. He determined that courts should be slow to direct a preliminary issue involving substantial evidence. Alternatively, if it was not appropriate to be left to trial, it might be speedily dealt with at the same time as an application for determination of meaning, whereby if it were determined that a publication conveys a serious defamatory imputation then an inference of serious reputational harm “ordinarily can and should be drawn”, whereas a meaning that did not convey a serious defamatory imputation would leave the claim vulnerable to being struck out – but this would not be inevitable. Davis LJ indicated that he would not limit the drawing of an inference of serious harm merely in cases where allegations of terrorism or paedophilia were alleged.
Use of the Jameel abuse jurisdiction or the summary judgment procedure under Part 24 were suggested as the preferred routes for defendants to deal with the issue of serious harm, with the example being given of this being appropriate where there was irrefutable evidence of very limited publication, no grapevine percolation and firm evidence that no one thought less of the claimant by reason of the publication.
Davis LJ endorsed the view of Judge Moloney QC in Theedom v Nourish Training Ltd that the presentation of evidence as to serious harm would be of little assistance and would potentially duplicate arguments as to quantum, which would be best left to trial. He considered that avoiding a proliferation of pre-trial hearings would save costs and discourage heavy-handed conduct by “well-resourced defendants” and would be in accordance with the overriding objective.
The principles were drawn together at paragraph 82 as follows:
(1) Section 1(1) of the 2013 Act has the effect of giving statutory status to Thornton, albeit also raising the threshold from one of substantiality to one of seriousness: no less, no more but equally no more, no less. Thornton has thus itself been superseded by statute.
(2) The common law presumption as to damage in cases of libel, the common law principle that the cause of action accrues on the date of publication, the established position as to limitation and the common law objective single meaning rule are all unaffected by s.1 (1).
(3) If there is an issue as to meaning (or any related issue as to reference) that can be resolved at a meaning hearing, applying the usual objective approach in the usual way. If there is a further issue as to serious harm, then there may be cases where such issue can also appropriately be dealt with at the meaning hearing. If the meaning so assessed is evaluated as seriously defamatory it will ordinarily then be proper to draw an inference of serious reputational harm. Once that threshold is reached further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial.
(4) Courts should ordinarily be slow to direct a preliminary issue, involving substantial evidence, on a dispute as to whether serious reputational harm has been caused or is likely to be caused by the published statement.
(5) A defendant disputing the existence of serious harm may in an appropriate case, if the circumstances so warrant, issue a Part 24 summary judgment application or issue a Jameel application: the Jameel jurisdiction continuing to be available after the 2013 Act as before (albeit in reality likely only relatively rarely to be appropriately used).
(6) All interlocutory process in such cases should be sought to be managed in a way that is proportionate and cost-effective and actively promotes the overriding objective.
(7) Finally, it may be that in some respects the position with regard to bodies trading for profit, under s.1(2), will be different. I say nothing about that subsection which clearly is designed to operate in a way rather different from s.1(1).
As a consequence, the Court held that an inference of serious reputational harm arose and, also having regard to the significant readership of the publications and the Defendants’ status as influential and reputable publishers, the appeal was dismissed.
An application for permission to appeal to the Supreme Court has been lodged on behalf of Independent Print Limited and Evening Standard Limited, but not yet determined.
This is a disappointing and regressive judgment for defendants, which contrasts with the indications given by Parliament as to how they envisaged the new section would protect defendants and enable weak claims to be disposed of at an early stage.
In practice, the decision gives little guidance on the circumstances in which an inference of serious harm might be drawn and therefore less serious imputations and/or cases involving Chase Level 2 and 3 meanings may well still result in preliminary issues being directed, whether in conjunction with a determination of meaning or on a standalone basis, albeit that such hearings and the evidence required for them may be curtailed.
The finding that serious harm occurs at the point of publication may limit the potential impact of the publication of a prompt apology, particularly in relation to cases bearing the most serious imputations.
Pending the outcome of the application for permission to appeal, this long-awaited judgment will cause further uncertainty for parties and may lead to issues of serious harm being left for trial, thus leading to further resources being expended on unmeritorious claims.
This post originally appeared on the RPC Data and Privacy blog and is reproduced with permission and thanks.