Serious Harm’ in Defamation Cases: Just How Much is Too Much?
To show that you have been defamed under the Defamation Act 2013, you need to establish that the defamatory statement has caused or is likely to cause ‘serious harm’. As is often the way with relatively brief and apparently simple legal statements, the courts have struggled to settle on a fixed meaning and process for establishing what ‘serious harm’ actually is.
The Court of Appeal ruled on Lachaux v Independent Print Limited earlier this month, and Lord Justice Davis’ judgment looks to have provided us with some degree of clarity . . . at least until the Supreme Court weighs in. Reports indicate that two of the defendants have lodged requests for permission to appeal already.
Paragraph 82 of the judgment is a handy summary of the judgment as a whole, and it states that:
- Serious harm is a higher hurdle for claimants than the old defamation threshold of substantiality. The 2013 Act makes it more difficult for a successful claim to be raised.
- Once a defamatory statement is identified, the seriousness of its meaning can be assessed objectively (theoretically) by the court, which means that there is no need to prove that harm has actually occurred. A seriously defamatory statement is likely to be interpreted by the courts as being seriously harmful.
- The harm to a successful claimant occurs when the defamatory statement is published, not when the actual harm is suffered.
- The proper place for a defendant to dispute serious harm is either in a full trial, or through strike out or summary judgment proceedings. It is inappropriate to deal with lots of evidence at a preliminary hearing establishing whether harm has been caused.
No real indication is given as to how much higher the threshold for harm is under the 2013 Act. The decision suggests that some future cases that might fail to meet the new threshold include situations where “the number of publishees [is] very limited, […] there has been no grapevine percolation and [where] there is firm evidence that no-one thought any the less of the claimant by reason of the publication”. This will still be a call for legal advisers to make based on the evidence and existing case law.
The judgment is particularly helpful to claimants in that it confirms that evidence is not necessarily required to show that serious harm has actually occurred. A theoretical likelihood of harm is enough. Moreover it rules against long evidentiary hearings taking place before the trial itself. These hearings can run less well funded claimants into the ground before a decision becomes possible.
The law of defamation is constantly evolving, if you would like to talk about the implications of any of the changes above, feel free to chat to our experts in reputation management to learn about how we can help.