Section 1(1) of the Defamation Act 2013 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.” As Warby J said in Doyle v Smith  EWHC 2935 (QB) – “This is a beguilingly simple sentence. Inevitably, though, there was debate as to its meaning and effect before and after the Act came into force on 1 January 2014.”
Fortunately for media lawyers, Mr Bruno Lachaux’s case against Independent Print Limited and Evening Standard Limited went all the way to the Supreme Court on this issue, providing an opportunity to clarify the meaning of these 23 words once and for all.
In a concise judgment spanning just 26 paragraphs ( UKSC 27) Lord Sumption gave a whistle-stop tour of the history preceding and culminating in the Defamation Act 2013 and set out the Court’s ruling on how section 1 should be interpreted and applied in defamation cases.
Lachaux – What did the Supreme Court say?
Unanimously, the Supreme Court held that when assessing whether a publication has caused “serious harm” to reputation, the inherent tendency (i.e. meaning) of the words to cause harm to reputation is not the sole factor. The exercise requires “a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated” .
The reference to “has caused” in section 1(1) is in relation to the “consequences of publication” – it points to “historic harm” which has actually occurred. Whereas, “likely to cause” element points to possible future harm. Both may be established as a fact .
The factual matrix of the case is important – factors such as the scale of publications (including print runs and estimated readership) and the gravity of the statements themselves (according to the meaning attributed to them). However, “[t]here is no reason why inferences of fact as to the seriousness of the harm done to […] reputation should not be drawn from considerations of this kind” .
Of course, the best kind of evidence will be from an individual who read the publication(s) and whose view of the Claimant was negatively affected. However Warby J and the Supreme Court recognised the inherent difficulty in many cases in producing this evidence, as the readers may be anonymous or those known to the Claimant may not have thought less of him/her (as they would not have believed the allegation) (Lachaux QB [138 – 140] and ). A Claimant’s case “must not necessarily fail for want of such evidence” .
But, to what extent is the Court prepared to infer serious harm in the absence or lack of evidence of actual impact?
There have been a string of recent cases applying the section 1(1) serious harm test as clarified in Lachaux. To select a few:
Where it’s failed
In the slander case of Yavuz v Tesco Stores Ltd & Anor  EWHC 1971 (QB), the allegation was one of theft, which the judge accepted has an inherent tendency to cause serious harm . However, only a handful of people (whom the Claimant did not know) are likely to have heard the defamatory words and the Claimant had not adduced any evidence of “grapevine effect”. Although the judge considered the imputation to be grave, “there was no basis for drawing an inference of serious harm, or of likelihood that it ha[d] spread and thereby caused serious harm” .
ZC v Royal Free London NHS Foundation Trust  EWHC 2040 (QB) is a peculiar case on its facts and the judgment is well worth a read. Knowles J concluded that the Claimant had failed to show the email in question had caused her serious harm in fact or that it was likely to do so. He said: “In summary, the evidence shows that the number of publishees was very limited; that there was no grapevine percolation; that two of the four publishes knew about the contents of the Email in any event before receiving it; and this that there was no evidence that anyone thought less of the Claimant by reason of the publication of the Email” .
Where it’s succeeded
In Warrick Fentiman v Richard Marsh  EWHC 2019 (QB), the Claimant complained about 3 separate posts which alleged that the Claimant (the CEO of a company) was responsible for carrying out an illegal cyber-attack, was a hacker and that criminal charges were being brought against the directors of the company including the Claimant for carrying out the cyber-attack.
The judge held that the allegations which formed the subject of the three posts were “all grave, and had an inherent tendency to cause serious harm” and that the number of people to whom each of the posts was published to was substantial – between 100 – 230 persons or views for each post .
The Claimant was able to show evidence of substantial further grapevine dissemination, however the judge said that “I would have been prepared to draw an inference of substantial “grapevine” dissemination in respect of each of the Posts even in the absence of that evidence. Such percolation typically results from allegations like these on social media.” The witness evidence produced by the Claimant from staff members who had read the posts was forceful in demonstrating that “far from people not believing the allegations, they were so pernicious that even those close to Mr Fentiman who trusted and admired him were deeply trouble by them, and seriously concerned that they might be true” .
In Al Sadik v Sadik  EWHC 2717 (QB) the allegations were that the Claimant had arranged to rob his brother’s house, had lied, even after having sworn on the Quran to tell the truth, and had committed perjury in order to dishonestly promote his interest at the expense of his own brother.
The judge dismissed the Defendant’s application for a strike out and/or summary judgment. In relation to the serious harm ground of the application, Knowles J listed many factors which informed his decision, including that the allegations were “very serious”, had a “religious component”, and taking into account the Claimant’s standing and reputation (including in London), the sender of the messages and the targeted nature of the messages (to his family members) .
Even though the messages were only directly published to 34 individuals, this number is “not trivial” and there was evidence of further, grapevine dissemination (albeit unquantified) outside that group which was “arguable significant” , [99 – 100].
The Claimant did not produce any direct evidence of adverse impact, however taking the other factors relating to harm into account the judge held: “I regard it as an arguable inference that there will be some among the population, who do not know the Claimant, and in whose eyes he has suffered serious reputational harm. The inherent probabilities in this case, certainly at this stage, are that there will have been some people who have become aware of the Messages and concluded that the Defendant would not have made such widespread and serious accusations against her sister’s husband [the Claimant] unless there was some substance to them” .
The case of Chandler v O’Connor  EWHC 3181 (QB) concerned allegations of money laundering and covertly using connections with Russia to lobby for a ‘hard’ Brexit. Although the Claimant had claimed that the offending Tweets were published to the Defendant’s Twitter followers, “a substantial number of which are based in England & Wales”, there was no other pleaded case as to publication, or republication (on a direct or indirect basis) . Nicklin J found the defamatory allegations to be serious, but commented that he had “limited evidence of the impact of the libel on the Claimant’s reputation”, “no clear evidence of the publication of the Defendant’s Tweets having caused damage to the Claimant” and a failure by the Claimant to provide the Court “with any reliable evidence as to the extent of publication” -.
Despite this, the judge awarded the Claimant £10,000 on a summary judgment basis, which took into account the conduct of the Defendant as an aggravating factor.
As Lord Sumption said in Lachaux, the two-pronged approach to serious harm under s.1(1) (namely “inherent tendency” + “actual impact”) is no “revolution in the law of defamation” .
What Lachaux and the subsequent cases have clarified is that a Claimant would be unwise to solely rely on the inherent tendency to cause harm in libel claims. The facts are integral and as much evidence as possible should be produced to get over the serious harm hurdle, e.g.
- The number of people to whom the allegations were published (although it’s not simply “a numbers game” (see Sadik ). It’s a good idea to try to obtain analytics data, especially for social media claims to evidence the extent of publication (see Chandler ) and Monroe v Hopkins );
- The location of the (likely) publishees (connections to England & Wales in particular) and their relationship to the Claimant;
- The extent of “grapevine effect” – this may be inferred in social media cases (see Fentiman v Marsh );
- Any evidence to show that the publishees thought less of the Claimant (i.e. the adverse impact evidence) – although absence of such evidence will not be fatal (see Lachaux );
- The targeted nature of the publication/dissemination and Defendant’s intention to cause harm (see Sadik [96-98]).
From a Defendant’s point of view, if the Claimant fails to advance this type of evidence, it is likely to leave serious harm arguments vulnerable and open to attack.
Emma Linch is an Associate at Simons Muirhead & Burton LLP