Proof of reputational damage necessary for libel actions to succeed, rules High Court

Out-Law News | 05 Aug 2015 | 2:30 pm | 3 min. read

Businesses and people that bring libel actions should not succeed with those claims unless there is proof that the published comments made about them damage, or are likely to damage, their reputation, the High Court in London has ruled.

Media law expert Alex Keenlyside of Pinsent Masons, the law firm behind Out-Law.com, said the ruling "is the most significant judgment on the proper construction of the serious harm test" under  section 1 of  the Defamation Act 2013 since the Act came into force at the beginning of 2014.

"The effect of the ruling is that there can no longer be said to be a presumption that damage is caused by libellous statements," Keenlyside said.

The High Court was ruling in a libel action brought by aerospace engineer Bruno Lachaux against three media organisations.

The Independent newspaper, its sister publication the 'i', the Huffington Post and the London Evening Standard had all published articles which contained allegations about Lachaux, including that he had been responsible for domestic abuse, had falsely accused his ex-wife of kidnap and had "unjustifiably snatched their son back from her", according to the High Court's judgment.

In considering Lachaux's claim, Mr Justice Warby considered how section 1 of  the Defamation Act should be interpreted.

Under the Act, a statement is held not to be defamatory "unless its publication has caused or is likely to cause serious harm to the reputation of the claimant".

The Act enables businesses as well as individuals to bring libel claims. Businesses must show that they have suffered or are likely to suffer "serious financial loss" from a defamatory statement for the 'serious harm' threshold to be satisfied.

Case law established prior to the Defamation Act coming into force had established the principle that statements held to have had defamatory meaning were presumed to have caused, or be likely to cause, some harm to reputation.

However, Mr Justice Warby ruled that this principle should no longer apply under the new Act. The judge considered what UK parliamentarians had intended when updating the defamation legislation.

"My conclusion is that … parliament intended to and did provide that a statement is not defamatory of a person unless it has caused or will probably cause serious harm to that person's reputation, these being matters that must be proved by the claimant on the balance of probabilities," the judge said. "The court is not confined, when deciding this question, to considering only the defamatory meaning of the words and the harmful tendency of that meaning. It may have regard to all the relevant circumstances, including evidence of what has actually happened after publication."

Mr Justice Warby said that those bringing libel claims might be able to demonstrate that "the serious harm requirement" of their claims is met in "inferential" cases, because of the "gravity of the imputation and the extent and nature of its readership or audience".

"Suppose a well-known public figure complains of national media publication of a grave imputation, such as conspiracy to murder or serious sexual crime," Mr Justice Warby said. "They could hardly be required to call witnesses who read the words to say they thought the worse of the claimant in order to establish a claim."

The judge said that in "less obvious cases" it "may be necessary for a claimant to prove some facts beyond the words themselves and the fact and extent of their publication".

The judge also suggested that his interpretation of the 'serious harm' provisions will mean that some libel claims that would have succeeded previously might not now do so, since factors such as the credibility of the author of the statements and what weight readers place on their comments will now be relevant to the consideration of 'serious harm'.

"One main difference in practice may well be that a claim will no longer succeed where the meaning is a serious one but the claimant's reputation in the eyes of those who read the words complained of is not in fact harmed seriously, if at all," Mr Justice Warby said.

In his judgment, Mr Justice Warby also considered when the appropriate time is for courts to review whether a statement is likely to cause serious harm. He said he was "inclined to prefer" an approach which would see courts make this determination at "the time at which the issue is determined" rather than at the time the claim form is issued.

"If the [latter] approach is adopted a claim would fail if actual damage had been caused at the time of the determination, but was not likely at the time of publication; and a claim would succeed if damage was likely at the time of publication even if it turned out that none was caused," he said.

No matter which approach is adopted, the consequence of the new defamation laws is that "the status of a publication may change from non-defamatory to defamatory", the judge said.

"A cause of action may lie inchoate until serious harm is caused or its future occurrence becomes probable," Mr Justice Warby said. "I see no difficulty with that. A similar position prevails at common law in respect of slanders which are not actionable without proof of special damage. Another consequence is that a publication may in principle change from being defamatory to being not defamatory (and hence not actionable), for instance by reason of a prompt and full retraction and apology."