Reputation update: Supreme Court clarifies “serious harm” test in landmark Defamation Act judgment

Posted: June 17, 2019

The long-awaited judgment of the Supreme Court in Lachaux v Independent Print Ltd & Another [2019] UKSC 27 was handed down on 12 June 2019. The Supreme Court rejected the media defendants’ appeal (albeit for different reasons to the Court of Appeal). The focus of both appeals was the meaning of “serious harm” under the Defamation Act 2013 (“the 2013 Act”). Section 1(1) of the 2013 Act 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”.

The claimant is a French national who at the relevant time lived with his British wife in the United Arab Emirates. In 2011, he began divorce proceedings in the UAE courts and sought custody of their son. In March 2012, his wife went into hiding with their son in the UAE, claiming that she would not get a fair trial in its courts. In August 2012, the UAE court awarded custody of the son to his father. In February 2013, the claimant initiated a criminal prosecution against his wife for abduction. In October 2013, he took possession of his son under the custody order. In January and February 2014, several British newspapers published articles making allegations about the claimant’s conduct towards his wife. He brought two defamation claims in the High Court in December 2014 and January 2015.

In February 2015, Eady J conducted a “meaning hearing”. He held that an article in The Independent bore eight defamatory meanings, and an article in the Evening Standard 12. In summary, the articles were held to have meant that the claimant had been violent and abusive towards his wife during their marriage, had hidden his son’s passport to stop her removing him from the UAE, had made use of UAE law and the UAE courts to deprive her of custody and contact with her son, had callously and without justification taken their son out of her possession, and then falsely accused her of abducting him.

At the trial before Warby J in July 2015, the newspapers did not contest the facts set out in the Particulars of Claim. Their case was that the statements in the articles were not defamatory because they did not meet the threshold of “serious harm” in the 2013 Act. Warby J held that the claimant had demonstrated, through evidence, that the harm caused by the publications was “serious”. The Court of Appeal dismissed the publishers’ appeal and focussed on the inherently injurious character (or so-called “tendency”) of the words published to damage the claimant’s reputation. That decision was also appealed. Lord Sumption gave the leading judgment in the Supreme Court, with which Lords Kerr, Wilson, Hodge and Briggs unanimously agreed.

Prior to the 2013 Act, Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 (CA) and Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985 (QB) introduced the requirement that damage to reputation in defamation must be more than minimal and must pass a threshold of seriousness. The Supreme Court held that section 1 of the 2013 Act not only raises the threshold of seriousness from that in Jameel and Thornton, but requires its application to be determined by reference to the actual facts about its impact and not just the meaning of the words, for several reasons: First, if “serious harm” under section 1(1) can be demonstrated simply by reference to the inherent tendency of the words, no change in the law (from the previous common law position prior to the 2013 Act) would have been achieved, yet it specifically introduced a new threshold of “serious harm” which did not previously exist. Secondly, section 1(1) necessarily means that a statement which would previously have been regarded as defamatory, given its inherent tendency to cause harm, is no longer actionable unless it “has caused or is likely to cause” harm which is “serious”. The words “has caused” refer to historic harm, which is a factual matter that must be established by reference to the impact of the defamatory statement(s). It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The words “likely to cause” refer to probable future harm, which again must be established as a fact. Thirdly, section 1(1) must be read with section 1(2). Section 1(2) states: “… harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.” That requirement must exceed the pre-2013 Act threshold of seriousness and requires an actual impact analysis, and not only reliance on the inherent tendency to cause harm of the words used – section 1(1) must read the same way.

On the facts, the Supreme Court largely adopted Warby J’s legal approach that his finding of “serious harm” was properly based on a combination of the meaning of the words published, the claimant’s situation, the circumstances of publication and the inherent probabilities. At trial, evidence was provided by the claimant, his solicitors and three other witnesses. Warby J based his finding of serious harm on (i) the scale of the publications, (ii) the fact that the defamatory statements had come to the attention of at least one person in the UK known to the claimant, (iii) that they were likely to come to the attention of others who knew him or would come to know him in the future, and (iv) the gravity of the statements themselves.

The case, although not revolutionary, provides helpful clarification in respect of a crucial aspect of the 2013 Act which had been a matter of debate for the five and a half years since it came in to force.

Tom Iverson, Partner