Prior to January 2014, a claimant in a defamation claim had to demonstrate that the effect of the published words was to lower them in the estimation of right thinking members of society (ie the ordinary reasonable reader). However, since the Defamation Act 2013 came into force, judges have been grappling with the additional question of what in fact constitutes "serious harm" to a claimant's reputation, the test introduced by section 1(1) of the Act, and at what stage that harm is to be determined. Under section 1(1): "a statement is not defamatory unless its publication has [also] caused or is likely to cause serious harm to the reputation of the claimant". The purpose of this additional requirement was to exclude frivolous claims which, while technically capable of satisfying the legal requirement, in reality had little (if any) impact on the claimant's reputation.
The meaning and application of section 1(1) has been considered in only a limited number of cases since coming into force on 1 January 2014. To date there has been a lack of consistency, however, about the way the term has been interpreted, leaving parties on both sides unclear about what, if any, evidence is required in order to show a statement is defamatory. This has been exploited by defendants.
The Court of Appeal has now handed down judgment in Lachaux v Aol (UK), Independent Print Ltd & Evening Standard Ltd  EWCA Civ 1334 providing some much needed clarity on the issue. Rather than indicating a dramatic change in the law, the Court of Appeal’s decision demonstrates a modest revision to the principle established by the High Court in Thornton v Telegraph Media Group Ltd  EWHC 1414 (QB). That case determined that, in order to be defamatory, a statement must surpass a threshold of seriousness, being a tendency to cause substantial harm. Section 1(1) supersedes Thornton but only to the extent that the threshold is now "serious" as opposed to "substantial" harm. It remains the case (contrary to previous judgments on section 1(1)) that the cause of action accrues at the date of publication.
The judgment is no doubt a victory for individual claimants. There had been much discussion in the lead up to the enactment of the Act that section 1(1) would result in the end of the traditional libel action in this country. While in practice, the effect was not that extreme, claimants have certainly to date been more cautious about issuing libel claims especially in the face of media organisations seeking to portray the serious harm requirement as a significant raising of the bar. This is now likely to change.
The Court of Appeal's decision follows a first instance trial of preliminary issues in the High Court in 2015. While the facts of the case are somewhat incidental to the subject of the appeal, the case arose out of a bitter divorce between Bruno Lachaux and his then wife. Over the course of the divorce, five articles in print and online were published by the Independent, The Huffington Post (AOL) and the Evening Standard in which a number of serious allegations were made against Mr Lachaux. These included allegations of domestic violence and abuse, child abduction, fabricating false allegations and manipulating the Emirate Sharia legal system so as to discriminate against his ex-wife and deprive her of access to their son. The readership for both the online and print articles ranged from 4,800 up to 2.5 million.
In relation to each of the five articles, the Court was asked to consider whether Mr Lachaux had suffered or was likely to suffer serious harm to his reputation as a result of the publications. Specifically, there was a question of the extent to which claimants needed to produce actual evidence that their reputation had suffered or was likely to suffer serious harm, or whether in fact serious harm could be inferred.
Court of Appeal Decision
While Davis LJ upheld the first instance decision of Warby J, he dismissed every ground of the defendant's appeal and agreed with Mr Lachaux's cross-appeal that section 1(1) did not have the effect of abolishing the presumption that damage was caused at the date of publication. Davis LJ was firm in his view that the cause of action must arise at the point of publication rather than drifting in and out of actionability between the publication date and the date the claim is issued.
The Court of Appeal said that there is "no reason in libel cases for precluding or restricting the drawing of an inference of serious reputational harm derived from an (objective) appraisal of the seriousness of the imputation to be gathered from the words used". The Court's reasoning was that, if the imputation of the allegations is serious which, consequently, has an inference of serious reputational harm, then it is not fair for an individual to be forced to clear yet another hurdle before trial by having to adduce evidence in order to prove serious harm.
It was held previously in the 2014 High Court decision of Cooke v MGN Limited  EWHC 2831 (QB) that there are some statements so obviously likely to cause serious harm to a person's reputation that such harm should be inferred to have been suffered. Bean J in Cooke gave the example that if a newspaper with a large circulation wrongly accuses someone of being a paedophile or terrorist, then the court could infer that the claimant would have suffered serious harm. In Lachaux, Davis LJ evidently felt Bean J’s approach was too limited and stated that he "would not agree at all with any … suggestion that such an inference of serious reputational harm can only be drawn in the rather extreme examples there given".
Some commentators have remarked that this case has blown wide open the restrictive intent of section 1(1) in terms of raising the bar in order to weed out spurious libel claims. While it is indeed a landmark decision on the interpretation of the serious harm test, Davis LJ was clear in his decision that the threshold of 'serious' was "more weighty" than that of the former 'substantial' threshold established in the previous common law. Section 1(1) was not designed to leave defendants "at the mercy of trivial claims". However, there is no doubt that this is a victory for claimants, swinging the pendulum back towards them and making it more difficult for defendants simply to rely on the "serious harm" test to rebut complaints.
What the decision does not do is offer clarity on the position that bodies trading for profit will need to take under section 1(2) of the Act. Davis LJ was silent on this point, but did comment that the section is "clearly designed to operate in a way rather different" from section 1(1). With that in mind, it remains possible that corporate bodies will still need to produce some form of evidence to prove the economic effect that a defamatory allegation has had on them.
Much more may yet still be to come. The defendants have lodged an application for permission to appeal to the Supreme Court.
If you require further information on anything covered in this briefing please contact Oliver Lock (020 33757 201) or your usual contact at the firm on 020 3375 7000. Further information can be found on the Brand and Reputation Management page of our website.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, September 2017