Before the Defamation Act 2013 entered the statue book on 1 January 2014, English libel law was sometimes in danger of being too one-sided. The ability of companies and other organisation to sue for reputational damage was a particular issue. Cases brought against individual journalists and bloggers also led to concerns over a 'chilling effect' deterring writers from publishing on controversial or public interest topics. Recent changes have aimed to reduce frivolous claims and reassert the balance between free speech and regulation.
The Defamation Act 2013 (Act) was designed to balance out and modernise English libel law. One of its key changes was the introduction, in section 1 of the Act, of a requirement that a statement must have caused or be likely to cause 'serious harm' to the claimant's reputation in order for it to be actionable in the courts. An additional qualification is created under section 1(2), whereby harm to the reputation of a body that trades for profit is only considered to constitute serious harm if the statement has caused or is likely to cause the body serious financial loss. It is clear that section 1 intentionally "raises the bar for bringing a claim" (as the judge said in the case of Cooke, considered below), however, the thresholds of "serious harm" and "serious financial loss" and how they can be evidenced, are still being developed by the courts. Case law dealing with what amounts to "serious harm" is, therefore, particularly important for prospective litigants. Below we set out a summary of cases since the Act came into force on the issue of serious harm.
Cooke v MGN (2014)
In 2014 the High Court gave its first guidance as to what would constitute serious harm. The judge, Bean J, said that "serious harm" indicates that a higher threshold of reputational harm is required than under the previous law, under which the threshold was that the statement: "substantially effects in an adverse manner the attitude of other people towards claimant" (Thornton).
The claimant must also show evidence of such serious harm. However, in certain circumstances, serious reputational harm could be so obvious that actual evidence is not required. In such cases the likelihood of harm can be inferred; the example used by Bean J was of publication in national media of allegations of terrorism or paedophilia. The extremity of the examples cited by the judge indicates that, for the majority of cases, actual evidence of serious harm will be required.
In addition to the lack of sufficient evidence to demonstrate a likelihood of serious harm in that case, the court held that the nature and effect of any apology was also to be considered when assessing whether the statements complained of caused serious harm. This further tilted the balance of interests in favour of the defendant. It should be noted that a fulsome apology had been made in Cooke, meaning that the judge believed most people who saw the article would also see the apology, mitigating the impact of the original publication.
Lachaux v Independent Print Ltd (2015)
The court developed the serious harm test further by clarifying the meaning of "likely". It held that it was not enough to show a tendency to harm reputation but it is necessary for the claimant to prove as a fact on the balance of probabilities, that serious reputational harm has been or is likely to be caused by the statement complained of. The court held that it is entitled to take all relevant circumstances into account and not just the defamatory words in establishing this, including what happens after publication, such as whether an apology or retraction has been issued. Thus, a statement may change from being defamatory to non-defamatory (e.g. in light of a full retraction/apology) and vice versa.
Brett Wilson LLP v Persons Unknown (2015)
This case concerned the publication of defamatory content on a website called 'Solicitors from Hell', a variant of the original website of that name that was closed down. The identity of the defendant in this case was a person unknown. The court gave its first guidance on what could constitute "serious financial loss". The judge held that the claimant solicitors' firm has suffered serious financial loss and thus could prove causation of serious reputational harm as a result of a defamatory listing on a website, which appeared within the top five of a Google search on the claimant. However, no figures were given in terms of loss.
The claimant relied on its status as a boutique firm which attracted much online business which would inevitably be reduced by the appearance of an entry on the 'Solicitors from Hell' site on its Google rankings. The judge found that this would lead inevitably to a loss of work from prospective clients. The claimant also cited a litigation opponent having raised the publication in correspondence and the withdrawal of a prospective client as a result of the publication. Warby J found it was possible to infer that there would have been instances where an individual had read the publication and not notified the claimant but had decided not to instruct as a result.
In comparison to the strict approach taken by the courts with section 1(1), Warby's interpretation of section 1(2) appears more flexible. As a High Court decision, there is a chance that the decision will be developed further in the Court of Appeal, but it shows a more liberal approach to the notion of financial loss than might have been anticipated.
Initial guidelines have emerged from the case law and have started to delimit the serious harm test in section 1. The unpredictability of the serious harm test could prove a deterrent for potential claimants looking to make a defamation claim, because of the uncertainty of a claim succeeding. Additionally, the difficulty of establishing evidence of serious financial loss requires resources and costs, which could act as a further deterrent, including to small businesses. Potentially this could lead to the bringing of claims by individuals associated with companies (such as CEOs) to circumvent the extra requirement under section 1(2). The certainty and balance which the Defamation Act 2013 intended to bring to this area of law has not yet been fully achieved within the scope of its section 1. Further case law is necessary in order see a pattern emerge and hence formulate a clear and predictable test upon which claimants and defendants of all types can rely.