Defamation, by its nature, gives rise to some of the most high-profile legal cases. The courts have been anxious in recent years to establish a clearer threshold for the level of harm that must be suffered in order to give rise to a claim for defamation.

The Government has responded with the passage of the Defamation Act 2013, which entered into force on 1 January 2014. The Act places the threshold at the forefront of the legislation, providing at section 1(1) that “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

TWO RECENT CASES

The case of Cooke v Mirror Group Newspapers Ltd, which was decided in August 2014, was the first case to examine the effect of s1(1) in detail. The case concerned an article in the Sunday Mirror entitled Millionaire Tory cashes in on TV Benefits Street, which described the poor living conditions of several rental properties featured in the Channel 4 series “Benefits Street”.

The claimants in the case took umbrage at a paragraph which stated: “Three more homes in the road where residents claim they have been portrayed as scroungers and lowlife by Channel 4 are owned by the Midland Heart housing association. Its chief, Ruth Cooke, 45, earns £179,000 a year and lives in a large house in Stroud, Glos.” Although the paper did print an apology to Ms Cooke and Midland Heart Ltd in the next edition of the Sunday Mirror, the claim continued.

In giving its judgement, the court indicated that it will not be sufficient for a claimant to merely show that the publication has caused or is likely to cause serious distress or injury to his or her feelings, and so decided that serious harm had not been caused and was not likely to be caused in the future. This decision was reached on the basis that the public apology made by the defamer significantly mitigated the likelihood of serious harm, eradicating or at least minimising any unfavourable impression created by the original article in the mind of the hypothetical reasonable reader who read both. In addition, the apology had been made far more accessible via Internet searches than the original article.

The case of Lachaux v Independent Print Ltd,decided in July 2015, has been heralded in the legal press as the most important decision on the concept of serious harm to date. It concerned a number of articles in different publications regarding an aerospace engineer working as a teacher in the United Arab Emirates, in which it was alleged that he had subjected his wife to domestic abuse and had falsely accused her of kidnapping their son.

In Lachaux, the court considered that serious reputational harm could be shown by inference, and that it could be proved by“adverse social media responses, name-calling, or similar events”.

The court also stated that the introduction of section 1(1) of the Act means that the status of a statement may change from being defamatory to non-defamatory, and vice versa, depending on the circumstances. For example:

  • a potentially damaging statement is not defamatory until such time as serious reputational harm has occurred or becomes likely to occur, at which point it will become defamatory; and
  • a defamatory statement may become non-defamatory “by reason of a prompt and full retraction and apology”.

Although an apology was made by the publisher of one of the statements, in the court’s view it was not sufficient to reverse its defamatory meaning because it simply stated that Mr Lachaux denied the claims and did not actually retract them. In addition, it was made some nine months after the original publication.

ANALYSIS

These recent cases provide welcome clarification as to the application of the Act.

However, the court’s decision in Cooke sets a disappointing precedent that has not been reversed by Lachaux. While there has been a reasonably long-established principle that an apology issued as soon as reasonably possible can mitigate the effect of a defamatory statement, the simple fact is that harm will often already have been caused by the time that an apology, no matter how sincere, is published. In addition, there will be some readers who read the original article, but not the apology.

An approach that heavily rewards the printing of an apology a full week after the defamatory statement was published may have been appropriate in the days of newspaper monopoly, when (arguably) everything moved rather slowly. However, today’s exponentially accelerating media landscape, in which social media and the Internet allow published material to reach a global audience within a matter of minutes, surely demands tighter restrictions on the timing and relevance of apologies.

It is to be hoped that further case law will rectify the position now established in the UK.