07 December 2018 - Article
The new serious harm test under section 1, Defamation Act 2013 The law of defamation assists a claimant, damaged by a defamatory publication, to remedy a rubbished reputation. But just what is a defamatory publication? Right from the get go of the new Defamation Act 2013, which came into effect on 1 January 2014, it is clear that changes are afoot. A defamatory statement used to be described as one that lowers the claimant in the estimation of right minded members of society; also one that causes him to be shunned or avoided; or even that exposes him to ridicule or contempt. But will these established definitions be shaken up by section 1 of the new act which now provides that ‘A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.' Ah, there's the rub. But what does ‘serious harm_' actually look like? In 2010 (_Thornton v Telegraph Media Group), previous case law from the 1930's (Sim v Stretch) was endorsed, requiring a ‘threshold of seriousness' to be established before the claimant could bring his claim. Around the same time, another judicial line developed, allowing for cases where no real harm could be said to have been caused — for example, where the defamatory statement had only been published to a handful of people — to be struck out as an abuse of process. Rather, what is required is a real and substantial tort. Litigation is never to be entered into lightly and — to be sure — most claimants will only decide to sue over a defamatory publication when serious harm to their reputation has occurred. It remains to be seen whether the new test will be even more strictly applied by the courts than before the Act came in. It is certainly likely, that it will be an issue raised by media defendants at the beginning of most disputes, as early as their receipt of the letter of complaint stage, in order to try to whittle out cases where evidence is not immediately forthcoming. The press — regularly bemoaning the alleged chilling effect of defamation actions — will likely find a stricter test to their taste. Whether or not your average Joe will find bringing a claim harder, is one thing — but it certainly looks as though things will get more difficult still for companies or other bodies trading for profit who seek defamation protection. Section 1 provides 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.' In reality, this means that a corporate libel claimant will have to show that they have lost or are likely to lose contracts, clients and business, as a result of the published defamatory statement. The problem here — only too obvious to anyone who lives in the real world — is that loss may have occurred, but establishing the evidence of that loss and the relevant causation, especially at the early stages of a complaint where it is necessary to set this out to the opponent or face a strike out, may be nigh on impossible. Which business today suffering from damage to its reputation as a result of a damaging article in the trade press or in a national newspaper, is likely to want to approach clients and customers, probing whether they have read the article and, if so, whether they have stopped giving them business as a result? The truth is that few people or organisations relish the prospect of getting involved in litigation, especially where they are a witness with little to gain from it themselves. What's more, businesses do not readily explain their business decisions in the open market place, and to be obliged to elucidate on the reasons why they withdrew a contract — as a result of something they read about their regular supplier in the Daily Mail, rather than as a result of a well thought out strategy decision — may be a step too far for most. That does not mean that individuals or corporates alike should allow these changes to beat them into submission and accept the publication of false and defamatory allegations. Corporates should consider carefully complaining — to the publisher and/or the regulator — over substantial inaccuracies they find in the traditional media or on social media. And they can give thought to whether the libel that defames their organisation, also damages the reputation of individual directors, managers or staff, who should themselves be protected by a claim. An unblemished reputation and an excellent brand are our most valuable assets — we must all seek to protect them. The Withers Media & Reputation team will keep abreast of developments as the new act is used, best to assist our clients in protecting theirs.