The High Court has ruled that in defamation cases claimants will have to prove, on the balance of probabilities, that the statement complained of has caused, or will probably cause, serious harm to the reputation of the claimant (Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB), 30 July 2015).

What?

This clarifies the construction of section 1 (1) of the Defamation Act 2013, which states "a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant."

The Court stated that, when determining this point, it will not be confined to just the defamatory meaning of the words or the harmful tendency of that meaning, but will consider all relevant circumstances. This may include anything that has occurred post-publication. The Court acknowledged that this may result in a publication changing from non-defamatory to defamatory, and vice versa, depending on the actions taken following publication (for example, where a full retraction and apology is issued). This is a departure from the common law presumption of damage.

In addition, the Court gave guidance on the procedural issues of a defamation claim, and recommended that, where a defendant argues that the harm to reputation does not meet the required "serious harm" threshold, this point be treated as a preliminary issue alongside the question of meaning. The defendants will not be required to file a full defence before the preliminary issues are decided.

It is worth noting, however, that while the above decision clarifies the position in relation to individuals, entities that "trade for profit" are required to show that the harm to its reputation has caused or is likely to cause it serious financial loss (section 1(2) Defamation Act 2013). This point has not yet been clarified by the courts.