The Defamation Act 2013 (‘the Act’) came into force on 1 January 2014.  At the time, we published an article considering the individual provisions of the Act, and speculating about how the law of defamation had been changed.  In this follow-up article, we revisit the topic six years after the Act’s inception and look at what has happened in practice. This post deals with sections 1 to 3. The remainder of the Act will be considered in Part 2.

What did the Act do?

According to Lord Sumption, in Lachaux v Independent Print Ltd & Anor [2019] UKSC 27, the Act sought ‘to modify some of the common law rules which were seen unduly to favour the protection of reputation at the expense of freedom of expression’.  More specifically, the Act codified and consolidated parts of both existing caselaw and statute, specifically in relation to the defences of justification (now ‘truth’), journalistic qualified privilege (now ‘publication on a matter of public interest’) and fair comment (now ‘honest opinion’).  The latter two defences were modified, and not mere codifications.  Amongst other provisions, the Act introduced a ‘serious harm’ threshold for bringing a defamation claim, and a single publication rule (potentially of great significance to online publication).  The Act stipulated that the courts of England and Wales do not have jurisdiction to hear defamation actions against persons domiciled outside the UK, EU or Lugano Convention, unless satisfied that this is clearly the most appropriate place to bring the action (with a view to preventing so-called ‘libel tourism’).  The Act also reversed the presumption regarding mode of trial – to judge rather than jury.  The Act and the impact of each provision is considered in more detail below.

Section 1 – Serious harm

The provision under section 1(1) of the Act that a statement is not defamatory unless a claimant can show that “…its publication has caused or is likely to cause serious harm to [his/her] reputation…“ has attracted more judicial attention than any other.  The question of what “serious” means and how it should be proved has been a vexing one.  The early judicial signs were that the bar for bringing a defamation claim had risen significantly.  Following Cooke & Anor v MGN Ltd & Anor [2014] EWHC 2831 (QB) (see our blog here), handed down in the summer of 2014, one could have been forgiven for thinking that the tort was facing an existential crisis.  Cooke appeared to suggest that a claimant would generally have to provide evidence of specific reputational harm, such that libel could no longer be said to be actionable per se and, save in the most obvious of cases such as allegations of terrorism or paedophilia in a national newspaper, a difficult evidential burden would have to be shouldered.  Naturally, defendant lawyers began deploying stock responses that statements did not meet the ‘Section 1 threshold’.  Often this was used as a device to avoid committed responses on the question of truth and other defences.  In many cases, claimant lawyers found it difficult to advise clients whether it was safe to sue, and started looking more and more to alternative causes of action in data protection legislation, malicious falsehood, harassment and misuse of private information.

In Ames v Spamhaus [2015] EWHC 127 (QB), handed down in January 2015, Warby J (who had been appointed the year before to replace Sir Michael Tugendhat as the primary specialist media law judge) was careful not to contradict Cooke, but his judgment suggested that the circumstances in which serious harm could be inferred (without evidence) might be more common.  A degree of uncertainty amongst practitioners persisted.

Claimant lawyers breathed a sigh of relief following the first Court of Appeal decision on serious harm in Lachaux v Independent Print Ltd [2017] EWCA Civ 1334 (see our blog here), handed down in September 2017.  The Court of Appeal held that section 1(1) had merely raised the common law threshold from one of ‘substantiality’ to one of ‘seriousness’ and that it would ordinarily be proper to draw an inference of serious reputational harm where the meaning of the words complained of was seriously defamatory.  The pendulum seemed to have swung decidedly back towards claimants.  Then, in June 2019, the Supreme Court unanimously rejected the Court of Appeal’s approach. In Lachaux v Independent Print Ltd & Anor [2019] UKSC 27 (see our blog here) it held that the meaning of section 1(1) is such that the question of whether serious harm has been suffered must be determined by reference to actual facts – the impact of the statement – not just the meaning of the words.  This was naturally trumpeted by defendant lawyers, and the press itself, as a victory for press freedom and freedom of expression.  Nevertheless, the court acknowledged that inferences of fact can be drawn from the circumstances and context of the publication, including matters such as (i) the scale of publication, (ii) evidence that the publication came to the attention of identifiable individuals and (iii) the gravity of the statement(s).

The Act had introduced an additional test under section 1(2) that applies to a body trading for profit, namely a requirement to show that a statement has caused or is likely to cause serious financial loss.  By contrast, this provision has seen relatively little scrutiny.  In Brett Wilson LLP v Persons Unknown [2015] EWHC 2628 (QB) (see our blog here) Warby J noted that whether financial loss is “serious” must depend upon the context.  In the handful of cases in which the court has had to consider financial loss, judges have been prepared to draw inferences where appropriate.  In Euroeco Fuels (Poland) Ltd & Ors v Szczecin And Swinoujscie Seaports Authority SA & Ors [2018] EWHC 1081 (QB) Nicol J noted that Parliament had not intended to limit ‘serious financial loss’ to special damage, and that was no reason why financial loss, like other forms of serious harm, was not capable of being inferred from evidence.

Thus, the section 1(2) hurdle has not been as formidable as many commentators had predicted.  Nevertheless, corporate defamation claims have been few and far between.  Large companies seldom brought libel claims before the Act (see the unfavourable publicity attracted by McDonald’s in the infamous ‘McLibel case’ for why) and this remains the case.  As such, it is difficult to say whether section 1(2) has made a significant impact.

There remains an important practical question over when a dispute on serious harm should be resolved.  In Ames, Warby J had suggested that it be resolved by way of a preliminary issue trial, and he presided over such a trial at first instance in Lachaux.  The Court of Appeal in Lachaux, however, suggested that the question should ordinarily be left to be determined at the full trial (and, if not, at a meaning hearing or an application for summary disposal). Although the Supreme Court rejected the Court of Appeal’s approach to the definition of serious harm and were supportive of Warby J’s approach generally, it did not address the procedure to be adopted.  Trying serious harm as a preliminary issue may be thought of as cost-saving, particularly if there is to be a trial of meaning in any event.  However, meaning hearings are normally resolved without disclosure and witness evidence, whereas these are likely to be essential for a definitive determination on serious harm.  Whilst a presumption may be drawn from the words complained of and the extent of publication alone, either party may wish to try to rebut such a presumption by providing context and an account of specific consequences.  The use of disclosure and witness evidence (and cross-examination) to determine a preliminary issue which ultimately may not be determinative of the claim, risks significantly inflating costs.  Following the Supreme Court’s decision in Lachaux, it will often be best to leave the matter for trial (see, for example, Steyn J, in James v Saunders [2019] EWHC 3265 (QB) at [16]-[17]), although as indicated by Warby J in Hamilton v News Group Newspapers Ltd [2020] EWHC 59 (QB) there will be cases where the issue can sensibly be dealt with at a preliminary trial.

Section 2 – The defence of truth

As we noted in our original article, the defence of truth is essentially the same as the common law defence of ‘justification’, which it replaced.  Nothing has happened during the past six years to suggest otherwise and the courts are applying the principles that applied to a plea of justification to a plea of truth.  The repetition rule has also survived unchanged.

As was generally envisaged when the Act came into force in 2014, judges are now routinely asked to determine meaning at a preliminary hearing.  The court has encouraged parties to seek such determinations before a Defence is filed so that a defendant can understand what case they need to meet if running a truth defence.  This is now reflected in part 4.2 of the new Practice Direction 53 which stipulates that applications for meaning determinations may be made at any time after service of particulars and ‘should be made promptly’ (see our blog here).  As mentioned above, disclosure and evidence are generally dispensed with for meaning determinations.  In Hewson v TNL & ANL [2019] EWHC 650 (QB), Nicklin J (who was appointed as a specialist media judge in September 2017) opined that there was no practical reason why meaning cannot be determined without a hearing, based on the parties’ written submissions, and that the resulting cost and time saving would clearly be in furtherance of the overriding objective.  Whilst the parties in that case consented to such a procedure (as in Hamilton), he indicated that the court may nevertheless direct it in future cases.

Section 3 – The defence of honest opinion

Section 3 replaced the common law defence of ‘fair comment’ with a new statutory defence of ‘honest opinion’.  In Butt v Secretary of State for the Home Department [2017] EWHC 2619 (see our blog here) Mr Justice Nicol noted that much of section 3 effectively codified the defence of fair comment and that previously established common law principles are still applicable to the new statutory defence.  However, the defence differs from the old ‘fair comment’ defence in some respects. Most significantly, the requirement that the comment be on a matter of public interest was abolished.

Nicklin J, provided a helpful summary of the guidance between fact and opinion in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB):-

“[16]  Again, there is no dispute as to the principles to be applied. Drawn from Grech -v- Odhams Press [1958] 2 QB 75; Branson -v- Bower [2001] EMLR 32; Lowe -v- Associated Newspapers Ltd [2007] QB 580; Joseph -v- Spiller [2011] 1 AC 852; British Chiropractic Association -v- Singh [2011] 1 WLR 133; Yeo -v- Times Newspapers Limited [2015] 1 WLR 971 [88]-[89]; Wasserman -v- Freilich [2016] EWHC 312 (QB); Morgan -v- Associated Newspapers Limited [2018] EWHC 1850 (QB) [13]; and Zarb-Cousin -v- Association of British Bookmakers [2018] EWHC 2240 (QB), when determining whether the words complained of contain allegations of fact or opinion, the Court will be guided by the following points:

i) The statement must be recognisable as comment, as distinct from an imputation of fact.

ii) Opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.

iii) The ultimate question is how the word would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.

iv) Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment.

v) Whether an allegation that someone has acted “dishonestly” or “criminally” is an allegation of fact or expression of opinion will very much depend upon context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact.

[17] I would also note here what I said recently in Tinkler -v- Ferguson[2018] EWHC 3563 (QB) [37] about implied or inferred expression of opinion:-

“… a number of adjectives and adverbs have been inserted into the Claimant’s meaning which are not part of the natural and ordinary meaning of the words. They are strained constructions of what is being said in the [publication]. For example, if an individual reader thought that the Claimant’s alleged behaviour was ‘selfish’, that would be a personal judgment made by the individual reader. It is neither stated nor implied in the text. Such inferential meanings (that depend upon – and vary between – each individual reader’s moral judgment) are not part of the natural and ordinary meaning of words: Brown -v- Bower [54]. In context, a suggestion that the conduct of the Claimant was ‘selfish’ would be an expression of an opinion. If such an opinion is expressly stated by the author, then it can readily be identified as such by readers. I find the notion of an ‘inferred opinion’ conceptually difficult. I suppose it is conceivable that an article may not make express an author’s view, but it nevertheless emerges clearly as a result of discernible indications in the text as to what his or her opinion actually is on the given facts. But this is very subjective; and it may be difficult to separate out those cases from cases where what is really happening is simply that the reader is supplying his or her own judgment on the stated facts rather than detecting the author’s opinion by implication.”

Whether a particular statement is one of fact or comment is typically determined at a meaning hearing.

One interesting development in this area has been the approach to whether allegations of dishonesty can amount to statements of opinion (answer: yes, depending on the context).  We considered this in a blog in March 2019.

This article was prepared by members of Brett Wilson LLP’s media law department with additional input from Szeréna Nemes.

This post originally appeared on the Brett Wilson Media Law Blog and is reproduced with permission and thanks