In Lachaux v Independent Print Ltd, Evening Standard Ltd, AOL (UK) Ltd, the high court considered the construction of 'serious harm' under section 1 of the Defamation Act 2013 (the Act).
Section 1 of the Act, states 'a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant'.
This is the first key decision to analyse exactly what that means. In brief - it was held that libel is no longer actionable without proof of damage.
A cause of action now only arises where it is proved that it caused - or probably will cause - serious harm to the claimant. In evidencing serious harm / damage, the court can now look at evidence occurring after publication, meaning that the old common law rule on when a cause of action in libel arises, is no longer good law.
The Claimant pursued five separate libel claims. Two of the claims related to articles published online in the Huffington Post by AOL (UK) Limited, two were published in The Independent newspaper and its sister paper, 'i' by Independent Print Limited, and the fifth article was published by Evening Standard Limited.
The articles, published between 20 January and 10 February 2014, contained an account of events in the UAE, including proceedings against the claimant's ex-wife for allegedly 'kidnapping' their son and reported allegations against the claimant for domestic abuse.
The court considered a number of issues by way of preliminary issue but this briefing focuses on the question of construction of section 1 of the Act.
On the question of 'serious harm', the Judge had to consider two legal issues:
1. does section 1 require that
- the words have a tendency to cause serious harm to the claimant's reputation; or
- that serious harm has, been or is likely to be caused to his reputation in the future (on the balance of probabilities).
The court held the latter was the appropriate test. In proving serious harm, it also held that all relevant circumstances should be considered, including evidence of what has actually happened after publication.
The court decided that where the issue of serious harm is in dispute, and a defendant argues the harm caused was not serious to justify a claim, the issue should be tried as a preliminary issue.
When considering when a statement 'is likely to' cause serious harm, the court held that the preferable view was when the claim was determined, rather than when the claim was issued, as 'a cause of action may lie inchoate until serious harm is caused or its future occurrence becomes probable.'
2. In reaching a conclusion on the issue of whether a publication caused or is likely to cause serious harm, the court considered whether it can and should take account of other publications to the same or similar effect as the material complained of. In this instance, the court found that other publications cannot be admitted into evidence for the purposes of reducing or limiting damages with reference to the seriousness of injury to reputation.
In this case, four out of the five articles were found to have caused the claimant serious harm.
This was on the basis that those four articles had substantial circulations and readerships, both online and in print copy and that: 'there were, on the balance of probabilities, tens of people and possibly more than 100 who know or know of the claimant and read one or more of the articles and identified him, and who thought the worse of him as a result'.
The article which was not found to constitute serious harm was an article containing 32 paragraphs where the claimant was only mentioned in 3 paragraphs towards the end. Further, the article had only 306 unique visitors over a period of 13 months.
Whilst each case is to be taken on a case-by-case basis, this judgment gives claimants guidance on what the court will take into consideration when determining the issue of serious harm.
Serious harm caused or likely to be caused
Claimants need to understand that unless serious harm can be proved to a person's reputation, a defamation claim will not arise.
In establishing whether serious harm has occurred the court will look at all the circumstances of the case and each case turns on its own facts. Guidance has now been given, however, that 300 visitors to a website page may not constitute 'serious harm'.
A company, partnership, and some other organisations may bring proceedings for defamation and seek damages from those responsible.
The threshold for corporate claimants in respect of serious harm is even higher under Section 1(2) of the Act, which sets out 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.
We have an expert team within the Dispute Resolution and Compliance team at Shoosmiths who can guide clients through a crisis - the internal investigation, their interactions with regulators, their dealings with the press, external communications and any resulting litigation. We have links with PR consultancies and experience of deploying positive PR strategies. The team can work with you to provide expert support and guidance in that all important first 12 hours.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.