What does “serious harm” mean?
Changes to the law have made it harder to win a libel case. The Defamation Act 2013 introduced a new test of “serious harm”, so that for claims arising on or after 1 January 2014, “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant” (s1(1) of the Defamation Act 2013).
For bodies that trade for profit, the hurdle has been raised even higher. Under s1(2) of the Defamation Act 2013, they will have to show that the publication caused or is likely to cause them serious financial loss.
For the first 18 months since the law came in to force, there was little guidance from the courts as to how the serious harm test was to be interpreted. In the first case to consider the test, Cooke v MGN Ltd  EWHC 2831 (QB), Bean J held that serious harm cannot be presumed and must be proved, although it would not always be necessary to adduce evidence of serious harm if the allegation was obviously likely to cause it – for example, if someone was wrongly accused of being a terrorist or a paedophile. In more nuanced cases, evidence of harm was needed and in Cooke there was none, and nor could such harm be inferred. The claimants in Cooke also failed to show that it was more likely than not that serious harm would be caused to their reputations in future.
But in Cooke, no live evidence was heard. Indeed, Bean J said that cross-examination would have been inappropriate given that this was a preliminary issue with a one-day listing. A different approach was taken in the latest case fully to consider the section 1(1) test, Lachaux v Independent Print Limited & Ors  EWHC 2242 (QB), heard by Warby J in July 2015 (the case is available here).
In Lachaux, the claimant, an aerospace engineer and French national working in the United Arab Emirates, pursued five libel actions against various publications over articles suggesting, amongst other things, that he was a wife-beater and had falsely accused his former wife of kidnapping their son. Several preliminary issues were heard together – including the meaning of words in three of the articles complained of – but most of these were matters of settled law. The interest in Lachaux is that it gives the first detailed judgment as to the proper construction of section 1(1).
Lachaux was heard over two days, and Mr Lachaux gave evidence and was cross-examined. The defendants relied on the decision in Cooke to argue that the claimant needed to establish as a fact, on the balance of probabilities, that serious harm had been or was likely to be caused to his reputation. The claimant meanwhile argued that to determine whether serious harm had been caused, one only needed to consider the impact of the offending words (at paragraph ).
Warby J rejected the claimant’s arguments and held that “in enacting s1(1) Parliament intended to do more than just raise the threshold for defamation from a tendency to cause ‘substantial’ to ‘serious’ reputational harm. The intention was that claimants should have to go beyond showing a tendency to harm reputation. It is now necessary to prove as a fact on the balance of probabilities that serious reputational harm has been caused by, or is likely to result in future from, the publication complained of.” 
The learned Judge agreed with Bean J in Cooke that serious harm could be inferred: “the serious harm requirement is capable of being satisfied by an inferential case, based on the gravity of the imputation and the extent and nature of its readership or audience”  – but again this is only likely to be so in obvious cases, where for example a well-known person is accused in the national media of a serious crime.
Overall, concerning serious harm, Warby J concluded that: “by section 1(1) 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 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. Serious harm may be proved by inference, but the evidence may or may not justify such an inference” .
Warby J accepted that this construction of section 1(1) means that libel is no longer actionable without proof of damage, and the legal presumption of damage will cease to play any significant role . He rejected the Claimant’s argument that the words complained of only needed to have a “tendency” to cause serious harm to the claimant’s reputation.
As to what sort of evidence might help a claimant demonstrate that their reputation had suffered serious harm, Warby J accepted that, except in obvious cases, evidence is likely to be needed and may be given live at a preliminary hearing, with the claimant being cross-examined, as occurred in Lachaux. Other evidence that is likely to prove relevant concerns the extent, nature and medium of publication of the words complained of. For example, Warby J held that one of the five publications complained about by Mr Lachaux, an article in the Huffington Post, did not cause him serious harm because it was an online article which had had just 306 unique visitors over a period of 13 months, and the words complained of were buried in three paragraphs towards the end of the 32-paragraph article .
As to the time at which a court may judge whether a statement “is likely to” cause serious harm, Warby J preferred the point at which the issue is determined in court, rather than the time when the claim form is issued (which was the point in time preferred by Bean J in Cooke) . The wording of the new statute meant that, whichever of those times is chosen as the point at which serious harm crystallises, a publication may change from non-defamatory to defamatory over time : “A cause of action may lie inchoate until serious harm is caused or its future occurrence becomes probable.” Equally, a publication may in principle change from being defamatory to not being so due, for example, to a prompt apology and full retraction. This would appear to challenge the common law position that the cause of action automatically arises upon publication of the defamatory matter.
This case does not give us any guidance as to how a body that trades for profit can demonstrate that it has suffered serious financial loss. That must wait for another day.
- Catherine Urquhart is the author of the article “Actionability in Defamation”, available to Westlaw subscribers in its Insight section