This article looks at the new Court of Appeal guidance resulting from the decision of Lachaux v Independent Print Ltd, Evening Standard Ltd & AOL (UK) Ltd  EWCA Civ 1334
Section 1(1) of the Defamation Act 2013 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'.
It had been thought that this section would operate to 'raise the bar' in defamation claims and act as a barrier against trivial / nuisance claims. Practitioners have been waiting to see how Section 1(1) will operate in practice.
We had our first indication following the first instance judgment in the Lachaux case. Our previous article, which considered this judgment (and which sets out the facts of the case) can be found here. The Court found that the relevant test was whether 'serious harm has been or is likely to be caused to.reputation in the future (on the balance of probabilities)'.
On appeal by the Defendants, the issue of serious harm was reconsidered by the Court of Appeal.
In brief, while the Court of Appeal upheld the first instance judgment in favour of the claimant and agreed with the first instance judge's approach in key respects, it came to a different view in relation to Section 1(1). By its judgment, the words 'is likely to cause serious harm' equate to having a 'tendency to cause' serious harm. So in order for a publication to be defamatory (thus actionable), it is necessary to show, as a minimum, a 'tendency' for the publication to cause serious harm.
After considering the correct way to approach and apply Section 1(1), the Court of Appeal held on the facts of the Lachaux case that an inference of serious reputational harm arose, taking into account both the nature of the statements/applicable meanings, and the significant circulation and readership of the newspaper articles in question.
The Lachaux case (at both instances) also clarifies the following points:
- That when considering 'serious harm', all relevant circumstances and evidence should be considered, including evidence of what has actually happened since publication;
- That the serious harm issue should be considered when the claim is determined, rather than when the claim is issued;
- That where the issue of serious harm is in dispute, the issue can be tried as a preliminary issue, perhaps alongside issues of 'meaning'; however the Court of Appeal judgment is more reticent on this point than the first instance judgment had been, suggesting that Courts should ordinarily be slow to direct a preliminary issue hearing, involving substantial evidence, and that in most cases it would be more appropriate to determine the issue of serious harm at trial. Fundamentally, the Court of Appeal found that where a publication at such 'meaning' hearing is evaluated as 'seriously defamatory', it will ordinarily then be proper to draw an inference of serious reputational harm without considering that as a separate preliminary issue.
The Court of Appeal judgment did acknowledge in respect of Section 1(1) a '..broad intention.to 'raise the bar' for bringing a claim in defamation' and spoke in terms of weeding out trivial claims. However, while the judgment has provided clarification as to the s1(1) requirement, the prevailing uncertainty remains, since the argument will now centre on whether a statement might 'have a tendency' to cause serious harm. It should be borne in mind that the Lachaux case involved articles in newspapers such as the Independent and the Evening Standard and that the Court had attributed serious defamatory meanings, some very serious allegations having been made against the claimant raising some suggestion of criminal offenses. The Court of Appeal observed in Lachaux that 'it is plain that an inference of serious reputational harm arises'.
It therefore remains to be seen how seemingly less serious libels, whether by reference to meaning or extent of publication, will fair when applying the Section 1(1) 'tendency' test and by extension where the threshold for trivial / non-actionable libels will sit. Unfortunately, we are less likely to get judicial guidance on this since these cases are by their nature less likely to progress to judgment. Certainly, for now there remains the continued possibility of Defendants having to defend more trivial and/or nuisance claims at least through preliminary stages, over arguments about 'tendency'. It remains the case therefore that publishers (in the widest sense) cannot assume a safe threshold level of non-serious / non-actionable defamation.
Further note - companies/partnerships
The Court of Appeal acknowledged that the position is different to that above for bodies trading for profit. While a company/partnership (and certain other organisations) may bring proceedings for defamation and seek damages from those responsible, their 'serious harm' threshold is set higher by Section 1(2) of the 2013 Act, which provides that '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'.
False statements made about corporate bodies and/or business leaders (whether by a competitor, ex-employee or otherwise) can create a significant reputational risk for their organisations, and the bringing of proceedings, after the event, is often too late.
The first 12 hours - what can you do?
When faced with a crisis situation that involves the publication of false and defamatory statements, those affected should be pro-active to limit any damage which may be caused. The first 12 hours of a crisis are typically the most crucial when positioning to manage the reputational impact. It is often about big picture focus, strategic thinking and PR. Companies should ensure that they have an actively managed social media presence which can be deployed to detect and avert potential problems before they develop.