Earlier this year, the Sunday Mirror published an article which claimed that disreputable landlords were making money from tenants on social security benefits. Midland Heart Housing Association and its CEO were cited in the article where it was said that “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…”.
Two preliminary issues were heard: the meaning of the words complained of and whether serious harm had been caused or was likely to be caused.
The process for determining meaning has not changed under the new Act. Mr Justice Bean did not accept either party’s pleaded meanings and adopted a middle ground – that Midland Heart was one of the well-off landlords letting to people in receipt of housing benefits thereby making money from their misery and that Ms Cooke was personally responsible for this conduct of Midland Heart and had become rich from it. It was this meaning which the Judge then had to apply the serious harm test to.
Under section 1(1) of the 2013 Defamation Act, “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”. For a body that trades for profit, the harm is not serious unless the statement has caused or is likely to cause serious financial loss. But how does an individual or a not-for-profit organisation, as was the case in this instance, demonstrate serious harm?
The claimants argued that the fact they were contacted by fellow professionals following publication of the article, to state how “awful” it was that they had been associated with disreputable landlords was proof of the harm to reputation the article had caused. Midland Heart argued that maintaining a strong reputation was central to their success in competitive tenders and any suggestion that it failed in the delivery of its services was bound to cause those who awarded the contracts to question whether Midland Heart should be receiving public money, although it could not point to any contract being lost as a result of the article. The claimants also argued that because the subsequent apology published by the paper had not stated that the claims made were false, this led to additional suspicions arising about what the claimants had done to be linked in such an adverse way with other alleged unscrupulous landlords.
The defendant argued that because there was no threat of future publication, if no actual serious harm had been suffered at the time of the hearing, it was hard to see how claimants could establish future serious harm was more likely than not, especially when an apology had been published. It also argued that if publication had caused serious harm to reputation there would be evidence of it, including in the blogosphere.
The claimants nevertheless accepted that there was no specific evidence that the article had caused serious harm to their reputations and the Judge concluded that the article was not likely to cause serious harm to their reputations in the future, in large part due to the apology the Sunday Mirror had published the following week which was “sufficient…to eradicate or at least minimise any unfavourable impression”.
So what can we take from this Judgment when it comes to establishing serious harm under the new Act?
When establishing whether a statement “has caused” or “is likely to cause” serious harm, the date from which to look backwards or forwards is the date of issue of the claim form.It is not enough to show that the publication has caused or is likely to cause serious distress or injury to feelings. Evidence of serious harm will not be required in every case; some statements are so obviously likely to cause serious harm to a person’s reputation, even if the individual’s friends and family knew the allegation to be untrue. Accusations of terrorism and paedophilia are two such examples.It is not clear what kind of evidence needs to be presented to the court in cases where the statements are not so obviously likely to cause serious harm. It is also not clear how much higher a hurdle “serious harm” actually is, as Lord McNally’s remark that the test only raised the bar by a “modest extent” was disregarded.A prompt and prominent apology which minimises any unfavourable impression of the claimant will be taken into account when assessing the likelihood of serious harm. Whether the apology remains available online and is more accessible than the original article is also likely to be relevant.
Having waited seven months for a judgment on section 1, its interpretation remains far from complete. Cooke v MGN did not deal with all the issues it could have done – whilst not strictly necessary on the facts of the case, guidance on “likely to cause” serious harm could have been given – and other issues posed by section 1 of the Act – such as what constitutes “serious financial loss” – remain unanswered. Further judgments will therefore be necessary.