Executive summary – the series
- The Defamation Act 2013 came into full force on 1 January 2014.
- The Act reformed defamation law in England and Wales and was designed to strike a balance between the protection of reputation and freedom of expression.
- In a five-part series, we will evaluate the Act’s impact on defamation claims during the past decade and consider the findings in key case law within the context of each provision and the effect of litigating defamation claims.
- In part one, we consider Section 1 of the Act and the introduction of the serious harm test.
PART 1: Defining defamation & the Serious Harm test
What is a defamation action?
Defamation concerns publications where the meaning is one that lowers a person in the estimation of right-thinking members of society generally and is so serious that the imputation has an adverse effect on a person’s reputation. For an actionable defamation complaint, the publication must refer to the individual affected, and it must be communicated to a third party. Defamation actions are divided into two causes of action: libel and slander. Libel is a defamatory statement in a permanent form, such as publications in writing (e.g. a newspaper article), whereas defamation in a transitory form, such as speech or gesture, is slander. Where the speech is recorded and published elsewhere, it would be treated as libel.
For a defamation action to be brought in England and Wales, essential elements of the wrongdoing must be satisfied, both in common law and in statute. Once these elements are met, the court must balance the rights of protection of reputation with freedom of expression to produce a just result, considering the facts and evidence, as well as evaluating any defences the defendant may raise. A claimant is not required to prove the allegation is false and a burden of proof is placed on the defendant to prove otherwise. Damage is presumed in favour of the claimant although any prospective claimant needs to show a publication has caused or is likely to cause serious harm.
All defamation claims must be issued in the High Court and the majority are issued in the Royal Courts of Justice, in the specialist Media & Communications list (‘MAC list’) following a rule change in 2019. Defamation claims are adjudicated by a specialist judge in the MAC list. Mrs Justice Steyn DBE and Mrs Justice Collins Rice DBE are the Judges Jointly in Charge of the MAC List on a three-year appointment until 21 December 2026.
Statutory authority
The implementation of Defamation Act 2013 in January 2014 followed a then-mounting contention the law was too weighted in favour of protecting reputation, at the expense of upholding the right to freedom of expression. The most frequent focus for criticism was so called ‘libel tourism’. London had acquired a reputation as the ‘libel capital’ of the world for foreign claimants to pursue defamation complaints. The Act was seen as an effort to combat any misbalance between protecting reputation and freedom of speech and accordingly, brought significant changes to the law, particularly for prospective claimants, who are now required to establish ‘serious harm’ as part of any claim. The Act also brought significant change to the existing common-law and statutory defences, which were enhanced to combat new challenges the law was confronting prior to 2013.
Section 1 – Serious Harm
The effect of Section 1 in the Defamation Act 2013 is that a statement is only defamatory where a claimant can show publication has caused or is likely to cause serious harm to their reputation. It also mandated an additional requirement for a body that trades for profit, which is that harm to the reputation of a corporate entity is not serious harm unless it has caused, or is likely to cause, the corporate entity serious financial loss. Section 1(1) therefore only applies to individuals and bodies which do not trade for profit.
The genesis of Section 1 followed decisions by the Court in Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75 and Thornton v Telegraph Media Group [2010] EWHC 1414 (QB). In Jameel, the Court of Appeal had held that limited publication in England and Wales did not amount to a real and substantial tort and it would be an abuse of process to allow the claim to proceed. This has since become known as the Jameel abuse doctrine and at the time of writing, the relevancy of Jameel abuse is currently subject to further consideration by the Supreme Court in Mueen Uddin v Secretary of State for the Home Office UKSC 2022/0135.
In Thornton, the Court identified it was necessary there was a threshold of seriousness that a statement had to reach to be defamatory. This principle was to avoid the court contemplating trivial complaints, which did not truly engage rights of reputation, for example, where the publication was of limited extent or was in the nature of abuse or tittle-tattle. Section 1 has raised the ceiling for parties pursuing a claim to deter trivial claims and means that only cases involving serious harm to the claimant’s reputation can progress.
What is Serious Harm?
The interpretation of Section 1 became a significant issue for the courts to grapple once the Act came into force, most notably in the case of Lachaux v Independent Print Ltd. This libel claim concerned a series of articles published by the Independent, the i newspaper, the Evening Standard and Huffington Post by AOL. These reported allegations against the Claimant, said to have been made by his ex-wife, who was described by one publication as a ‘British victim of domestic abuse’. Each article bore similar defamatory meanings about the Claimant, namely that he was a wife-beater, that when his ex-wife departed with their son, the Claimant falsely accused her of kidnap, causing her to face the risk of being jailed on such a charge and that he unjustifiably snatched their son back from her.
In 2015 in a trial of preliminary issues, the Court had to decide whether, in relation to each article, the publication of such allegations about the Claimant in England and Wales caused or was likely to cause sufficient harm to the Claimant’s reputation. In finding that some publications caused serious harm to the Claimant’s reputation, Mr Justice Warby (as he then was) held that Section 1 required claimants to prove that serious reputational harm had been caused by, or was likely to result from, the publication complained of and not just that the words complained of had a defamatory tendency. In determining the question of whether a claimant suffered serious harm, the Court was entitled to have regard to all the relevant circumstances, including evidence of what actually happened after publication. The natural consequence of Section 1(1) was that libel was no longer actionable without proof of damage and that the legal presumption of damage would cease to play any significant role. In In 2017, the Court of Appeal upheld Warby J’s finding and rejected all the defendant newspapers’ challenges to his decision. However, the Court differed from Warby J on the construction of Section 1(1) and took a view along the lines of the pre 2013 case-law that the provision had merely raised the common law threshold from one of ‘substantiality’ to one of ‘seriousness’ and that it would ordinarily be proper to draw an inference of serious reputational harm, where the meaning of the words complained of was seriously defamatory.
In 2019 and following an appeal to the Supreme Court, a landmark judgment was delivered that resolved questions about the “serious harm test”. The Supreme Court determined that Section 1 has both raised the threshold of seriousness established in pre-2013 case law and also required its application to be determined by reference to the actual facts about its impact and not merely the meaning of words. The effect of Section 1(1) is a statement that would previously have been regarded as defamatory because of its inherent tendency to cause some harm to reputation is not to be so unless it “has caused or is likely to cause” harm which is “serious”. “Serious harm” refers to the consequences of the publication rather than the publication itself and depends on a combination of (1) the inherent tendency of the words and (2) the actual impact of such words to those to whom the publication(s) were communicated. The Supreme Court held there was no reason why Warby J should not draw inferences of fact as to the seriousness of the harm done to the Claimant’s reputation from considerations, including the meaning of the words, the Claimant’s situation, the circumstances of publication and the inherent probabilities.
Serious Harm post Lachaux
Lachaux confirmed Section 1 has created an evidential burden for all claimants to prove serious harm to reputation as well as serious financial loss for corporate claimants. In two recent cases; Miller & Power v Turner [2023] EWHC 2799 (KB) (a libel claim) and Blake and ors v Fox [2024] EWHC 146 (KB) (a libel counter-claim), both claims failed on findings the respective parties failed to show publications had caused serious harm to each of their reputations. At the time of writing, it remains to be seen whether the Counterclaimant will seek permission to appeal the decision in Blake.
While Lachaux clarified the effect of section 1, it remains an issue of contention as can be seen in a series of notable decisions following Lachaux.
Banks v Cadwalladr was a libel claim brought by businessman and “Brexiteer” Arron Banks against Carole Cadwalladr, a freelance journalist and writer, in respect of a TED Talk she gave in April 2019 and a subsequent Tweet by the Defendant in June 2019. In 2019, Mr Justice Saini ruled the natural and ordinary meaning of both publications was that “on more than one occasion Mr Banks told untruths about a secret relationship he had with the Russian government in relation to acceptance of foreign funding of electoral campaigns in breach of the law”. Following the trial in 2022, Mrs Justice Steyn ruled the Claimant had established serious harm in relation to the TED Talk, but not the Defendant’s tweet. The Court, however, dismissed the libel claim and found the Defendant’s public interest defence was established from the original date of the TED Talk publication until 29 April 2020. The date was significant as the Court found there had been a significant change of circumstances when the Electoral Commission and the Claimant issued a joint statement confirming that the Commission had accepted the NCA’s conclusion that the Claimant had not committed any offences and there was no evidence to suggest he had received third party funding to fund loans for political campaigns. Accordingly, the Defendant was unable to establish her public interest defence from 29 April 2020 to the ongoing publication of the TED Talk and Steyn J determined that serious harm had to be reconsidered for the period after this date. The Court ruled that the Claimant’s case the TED Talk had caused or was likely to cause serious harm after 29 April 2020 failed, as it was reasonable to infer that the majority of those who viewed the TED Talk after 29 April 2020 within the jurisdiction, were individuals within the Defendant’s “echo chamber”, whose opinion was of “no consequence” to the Claimant. The Claimant appealed Steyn J’s judgment on three grounds, including the Court’s decision to reassess serious harm after 29 April 2020 and to find serious harm was not established in the period following this date.
In 2023, the Court of Appeal held that Steyn J was principally correct to reconsider the serious harm issue after 29 April 2020, but the Court made an error in deciding the ongoing publication of the TED Talk did not caused serious harm to the Claimant’s reputation. The appellate court ruled the only conclusion open to the Judge on the evidence was that the TED Talk did cause serious harm during this same period to the Claimant’s reputation, as serious harm was an inevitable inference from the inherent gravity of the allegation and the scale of publication. There was no proper basis to find that individuals who viewed the TED Talk after 29 April 2020 were within the Defendant’s “echo chamber” and of “no consequence” to the Claimant. The Court of Appeal did not overturn the finding for the Defendant’s public interest defence of the original reporting, which the appellate court recognised “absorbed most of the time and money” and the parties agreed that the Defendant should pay £35,000 in damages for the continued publication of the TED Talk. The effect of the decision meant that the Claimant’s appeal was only successful on one of three grounds but confirmed that serious harm may need to be reconsidered in the event any public interest defence is in effect for a limited period.
Amersi v Leslie & Anor was a libel claim, which concerned the publication of several documents by the First Defendant, a former MP, to various individuals that the Claimant, a businessman and founder of the Conservative Friends of the Middle East and North Africa Limited, complained comprised of 22 defamatory allegations of him, including that he presented a risk to national security and was someone to be avoided.
In 2023, Mr Justice Nicklin awarded the Defendants summary judgment and ruled the Claimant’s original case did not establish how he suffered serious harm in respect of each of the 22 publications, and that the composite case failed to distinguish between the publications he alleged had caused him serious harm. The Court rejected the Claimant’s attempt to improve his pleading on serious harm and also ruled the Claimant would not have a further opportunity to amend his case, as there was no evidence that demonstrated the Defendant’s publications had caused or were likely to cause serious harm to his reputation and there was no realistic prospect that such evidence would turn up at trial.
The Claimant applied for permission to appeal the decision that he had failed to show a real prospect of proving that the 22 publications caused serious harm to his reputation or was likely to do so. In 2023, the Court of Appeal refused the Claimant permission to appeal. The appellate court considered that the aggregation of reputational harm caused by separate publications was legitimate, where the statements complained of were identical or immaterially different from one another, however, the Claimant had not pleaded his case in this way as he had pleaded each publication separately with its own statement and its own pleaded meaning, allegation or imputations. The decision confirms a claimant pleading serious harm on the basis of multiple publications needs to consider the most appropriate format to demonstrate why a publication had caused serious harm.
Corporate claims and serious financial loss
The introduction of Section 1 has also significantly impacted corporate claims. Section 1(2) provides that harm to the reputation of a body trading for profit is not serious harm unless it has caused or is likely to cause serious financial loss. This has created a significantly high threshold for any corporate body looking to pursue a claim.
Gubarev & Anor v Orbis Business Intelligence Ltd & Anor [2020] EWHC 2912 (QB) concerned a libel claim brought by a Russian businessman and one of his companies in relation to the dossier produced by the former diplomat Christopher Steele, concerning former US President Donald Trump and his links to Russia. The claims failed principally on the ground that the Defendant was held not responsible for the dossier’s publication, but the judgment also engaged on whether the corporate claimant had satisfied the serious harm test. Although Warby J held there had been substantial re-publication of the defamatory allegation in the European Union and was minded to infer this had caused serious injury to the corporate claimant’s reputation, the company’s claim nonetheless failed as it had not been shown that that these publications led or were likely to lead to substantial financial loss.
The Gubarev decision confirmed it is evidentially burdensome for a larger company to prove serious financial loss arising from a particular defamatory statement. In large companies, with complex corporate structures and financial affairs, establishing a particular statement caused or is likely to cause loss becomes onerous. Serious financial loss should be judged by reference to the size of the company and accordingly, the larger the company, the larger the loss must be to qualify as serious. Comparatively, a smaller company with less complex finances, which depends on a particular size of clientele, may have less difficulty. In Brett Wilson LLP v Persons Unknown [2015] EWHC 2628 (QB), in an application for default judgment, Warby J found a particular statement published on an online review website, which had appeared prominently in search engine results for six months, had led to the loss of one client from the claimant law firm’s services and likely deterred prospective clients, was likely to cause serious financial loss to the boutique firm because of its small size.
The key takeaway is what constitutes serious financial loss for a large Public Limited Company is likely to be judged differently from a small privately-owned company. A loss of custom may well be persuasive evidence of serious harm for the purpose of satisfying Section 1(2) and also, a fall in a company’s share price, while not a recoverable loss, may equally form evidence of the financial effects of unfavourable allegations (Collins Stewart Ltd v The Financial Times Ltd [2004] EWHC 2337).
Serious Harm in 2024
Section 1 has been effective in combating any misbalance in defamation law and the balance between protecting reputation against freedom of expression. It has undeniably made a significant change and as the Supreme Court confirmed in 2019, claimants must be able to show the serious harm suffered from a statement complained of. The immediate effect is that some claimants will be unable to satisfy this burden, likely due to a lack of evidence. It does, however, ensure trivial and frivolous claims will not be able to proceed without actual evidence of serious harm.
In the second instalment of our A decade of the Defamation Act 2013 series, we examine Sections 2 and 3: Truth and Honest Opinion.
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This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
