New threshold of seriousness in defamation proceedings
In libel actions brought by French aerospace engineer Bruno Lachaux against the Evening Standard, the Independent Newspaper and the i, the Supreme Court has clarified the requirement of “serious harm” for defamation actions.
Section 1(1) of the Defamation Act 2013 introduced the hurdle that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the Claimant”. However, the practical application of this requirement has not yet been clear.
In this appeal, the newspapers argued that section 1(1) introduced a requirement that the words complained of must not only be inherently injurious but “must also be shown to produce serious harm in fact”. However, Mr Lachaux argued that section 1(1) required only that it was enough that “the inherent tendency of the words must be to cause not just some damage to reputation but serious harm to it”.
The Supreme Court dismissed the appeal but found that section 1(1) introduced a new hurdle to be satisfied before a statement could be regarded as defamatory. The words complained of must not only be inherently injurious but “must also be shown to produce serious harm in fact”. This additional requirement will call for an investigation of the actual impact of the words complained of, including the particular circumstances of the Claimant and the reaction of those to whom it is published.
In reaching this decision, the Supreme Court considered that the objective of Parliament as set out in the preamble to the Defamation Act 2910 was to “amend the law of defamation” and that therefore a requirement to show that words produce serious harm in fact was the only approach that could bring about the substantial change to the law of defamation that was intended.
The practical application of the requirement to demonstrate as a fact that the harm caused by the publications complained of was serious may require extraneous evidence to be submitted. This is likely to involve an investigation of the scale of the publications, whether the publications had come to the attention of any people who knew the Claimant, whether they were likely to come to the attention of others who knew him, the gravity of the statements complained of, the situation of the Claimant and the “inherent probabilities”. The Supreme Court further clarified that “There is no reason why inferences of fact should not be drawn from considerations of this kind”.
This amendment to the law of defamation may have the practical effect of making defamation proceedings more difficult to bring as it adds an additional evidential hurdle for Claimants. It may also increase the costs of defamation claims as prospective Claimants are likely to have to spend money investigating and evidencing serious harm and may also have to attend preliminary hearings arguing about whether it is possible to demonstrate serious harm.
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