PPA Associate Member, Foot Anstey, explores how a recent case in the Supreme Court has raised the bar in regards to defamation cases
In an eagerly awaited decision, the Supreme Court has unanimously determined that to bring a defamation claim, a party must prove that they have suffered serious harm. Proof must be by reference to actual facts demonstrating the impact the publication has had on their reputation, not based merely on the meaning of the words complained of.
A positive decision for those in the defendant seat, who will now be able to push back on any claims not accompanied by evidence of harm. Not such a good decision for claimants, although the case has reaffirmed that: (1) every repetition of a defamatory statement is to be treated as though it were the original statement (i.e. it is no defence to simply say you were repeating something someone else has said); and (2) where multiple publications have repeated the same allegations, the earlier publications will be largely irrelevant to the damage caused by the later publications.
The facts of the case
In this now well-travelled case, Mr Lachaux brought proceedings against a number of newspapers over allegations published in 2014 concerning his conduct towards his former wife during their marriage and in the course of acrimonious divorce and custody proceedings.
At an early hearing, Mr Justice Eady found that the articles bore defamatory meanings, including that: (1) Mr Lachaux had been violent and abusive towards his wife while married; (2) had hidden their son's passport to prevent his wife from removing the boy from the UAE; (3) had used UAE law to deprive her of custody and contact with her son; (4) had callously and without justification taken him out of her possession; and (5) had then falsely accused her of abducting him.
At a subsequent trial, the newspapers put forward the case that the statements were not defamatory because they did not meet the threshold of seriousness set out by Section 1(1) of the Defamation Act 2013. Namely, that of having caused or been likely to cause Mr Lachaux serious harm.
The trial judge having found in the claimant's favour, the case found its way to the Court of Appeal, who determined that serious harm required a claimant to establish only that the words complained of had a tendency to cause serious harm, a test which could be achieved by looking solely at the words.
The defendants appealed to the Supreme Court, who heard the case in November last year.
Lord Sumption’s resulting judgment, adopted unanimously by the Court, upholds the legal analysis of Mr Justice Warby in the High Court and rejects the weakened test favoured by the Court of Appeal, which held that all the claimant had to establish was that the publication had a tendency to cause serious harm, which could be assessed by looking solely at the defamatory words.
The Supreme Court decision
Distilling the (relatively modest) twelve pages of the judgment, the key points to take away from the decision are as follows:
To pass the threshold for defamation, the claimant must prove that they have suffered or are likely to suffer serious harm by reference to actual facts about the impact of the publication and not just on the meaning of the words. In practice this means that they will have to produce evidence of the harm caused; often a difficult task. We can expect to see more of online impressions, google trends and social media mentions, both negative and positive.
The test of serious harm for individuals must be read in the context of section 1(2), which provides that bodies trading for profit must show that the words complained of have suffered or are likely to suffer serious financial loss. Again, the court said this calls for an investigation of the actual impact and not just by looking at the inherent tendency of the words.
A court may draw inferences of fact as to the seriousness of the harm caused from considerations such as the meaning of the words, the situation of the claimant, the circumstances of publication and the inherent probabilities. It therefore seems that the most serious allegations will still be deemed to be likely of causing serious harm without the need for the same level of evidence required in other cases.
The impact on the claimant's reputation will generally be taken to occur at the moment of publication, i.e. not at some later date when the repercussions take place. In practice, this means that the one year limitation period (not forgetting the additional four months a claimant has to serve the proceedings) still commences at the date of publication.
The longstanding 'repetition rule', which provides that it is no defence for a defendant to simply say it was repeating something someone else has said, remains unchanged by the serious harm test.
Similarly, where multiple publications have repeated the same allegations, the earlier publications will still be considered largely irrelevant to the damage caused by the later publications.
However having upheld the original trial judge's reasoning on serious harm, the Supreme Court rejected the appeal on the facts.
The decision raises the bar for defamation claims, replacing the lower test applied by the Court of Appeal. Following the decision, we expect to see the evidence (or lack of it) take centre stage in future complaints and potentially, a reduction in the number of complaints actually being issued.
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