The Supreme Court has held that the requirement to show “serious harm” under section 1(1) of the Defamation Act 2013 not only raises the threshold of harm which must be proved but also requires its application to be determined by reference to actual facts regarding the impact of the statement and not just to the meaning of the words: Lachaux v Independent Print Limited & Anor  UKSC 27.
In doing so, the Supreme Court affirmed the reasoning of the High Court and departed from that of the Court of Appeal, although it dismissed the appeal on the facts (see here for our post on the Court of Appeal decision and here for our post on the High Court decision).
The appeal was significant in the law of defamation as it was the first opportunity presented to the Supreme Court to consider the requirement introduced by section 1(1) of the 2013 Act that a statement “is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”. This so-called “serious harm” requirement has been the subject of much interest and uncertainty and the Supreme Court judgment provides much-needed clarity over its proper construction.
There is now no doubt that an assessment of “serious harm” should take account of not only the meaning of the words complained of and their inherent tendency to damage the claimant’s reputation but also the actual circumstances of the claimant and the reaction of those to whom the statement was published.
By way of illustration, the court contemplated a scenario in which a grave allegation was published only to a small number of people, or to people who did not believe the allegation, or to people among whom the claimant had no reputation to be harmed. Under the common law, those circumstantial factors would only be relevant to an assessment of damages whereas, under section 1(1), they become part of the test of the defamatory character of the statement itself.
Alan Watts and Neil Blake, partners, and Christopher Cox and Angela Liu, associates, in our disputes team consider the decision further below. Continue reading
The Supreme Court has unanimously rejected the approach taken by a first instance judge in using dictionary definitions as the starting point for interpreting the meaning of allegedly defamatory statements published on a social media platform. The court reiterated that meaning is to be determined according to how it would be understood by an “ordinary reasonable reader” having particular regard to the context in which the statement was made: Stocker v Stocker  UKSC 17.
The Supreme Court held that the judge had erred in law by relying on the dictionary definition of the verb “to strangle” as dictating the meaning of a Facebook post containing that word and, in so doing, failing to conduct a realistic exploration of how the ordinary reader of the post would have understood it. As noted in the Supreme Court’s judgment, the social media user is a new and modern class of reader. This decision gives welcome clarity to the approach to be taken in determining the meaning of statements made on social media platforms.
The Supreme Court also offered some obiter comments on the role of an appellate court in considering the meaning of allegedly defamatory words as found by a trial judge. In particular, it cautioned that an appellate court should exercise “disciplined restraint” when deciding whether to set aside the meaning reached by the trial judge.
Alan Watts and Neil Blake, partners, and Christopher Cox and Angela Liu, associates, in our London disputes team consider the decision further below.
The Court of Appeal has rejected an argument that there is a need to “rebalance” the law of defamation in favour of defendants by imposing a knowledge or negligence based test to establish liability for publication, with the burden of proof on claimants: Stocker v Stocker  EWCA Civ 170.
The court held that a party published defamatory comments about her ex-husband to the third parties who read them when she posted them on a Facebook Status Update of his new partner, even though she had not turned her mind to the question of who else might see her comments.
In addition, the court rejected an argument that a Facebook user’s ability to remove or restrict his or her friends’ access to comments means that publication of the comments is a republication because the user is “actively involved” in the publication.
Although this decision concerns publication in the context of Facebook, it has potential relevance to other online networks or platforms.
Alan Watts, Partner, and Zoe Wood, Associate (Australia), in our London disputes team consider the decision further below. Continue reading
In an important decision for the law of defamation, the Court of Appeal has clarified the meaning and effect of the requirement to show “serious harm” under the Defamation Act 2013: Lachaux v Independent Print & Ors  EWCA Civ 1334. In doing so, it has departed from the approach adopted at first instance (see here for our post on the High Court decision).
Section 1(1) of the Defamation Act 2013 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”. The High Court found that this required a claimant to show actual or probable harm on the balance of probabilities before a statement was actionable, and so displaced the common law presumption of damage in libel claims.
The Court of Appeal disagreed. It held that section 1(1) raised the threshold of harm that must be proved from “substantial” (as it was under the common law) to “serious”, but that this did not affect the presumption of harm itself or the principle that the cause of action arose upon publication.
As a matter of case management, the Court of Appeal also held that where the “serious harm” requirement is in issue, it should not ordinarily be tried at a separate preliminary hearing (as it was before the High Court).
Alan Watts, partner, Neil Blake, partner, and Angela Liu, associate, in our disputes team consider the decision further below. Continue reading
The High Court recently considered the approach to interpreting a "course of conduct" under the Protection from Harassment Act 1997 and the requirement of "serious harm" under the Defamation Act 2013: Hourani v Thomson and others  EWHC 432 (QB).
This decision provides a vivid example of how concurrent liability can arise in the torts of defamation and harassment in the context of social media campaigning. It also provides instructive guidance on the type of evidence that may be offered to prove publication in this jurisdiction of statements made online by foreign defendants, as well as the type of harm that is considered sufficiently serious to found a defamation claim.
The court also considers the role that the rights to freedom of expression and freedom of assembly (balanced against the right to a private and family life) play in assessing whether a course of conduct amounts to harassment.
Neil Blake and Rebecca Murtha in our disputes team consider the decision further below.
On 10 March 2017, the High Court held that two tweets written by Katie Hopkins (a well-known columnist for The Sun with 570,000 Twitter followers at the time) caused real and substantial distress to Jack Monroe (a food blogger and writer) as well as serious harm to her reputation: Jack Monroe v Katie Hopkins  EWHC 433 (QB).
Ms Monroe was awarded £24,000 damages plus costs. With regards to costs, Ms Hopkins has been ordered to pay an initial £107,000 with a final figure to be assessed.
The decision is of particular interest as it is one of the few cases in which the court has examined the “serious harm” threshold at Section 1 of the Defamation Act 2013. This case provides guidance, in the context of a claim by an individual claimant, that reputation does not need to suffer gravely; serious harm with substantial distress is enough to meet the threshold. The decision leaves open the question of what amounts to serious harm for a corporate.
Alan Watts, Rebecca Murtha and Sara Scott in our media disputes team consider the case and its implications for Twitter libel cases further below.
The Defamation Act 2013 came into force on 1 January 2014. Alan Watts and Sara Scott have published an e-bulletin looking at how the Act has developed and been applied over the last two years. Click here to read the e-bulletin.
The Defamation Act 2013 introduced a statutory seriousness threshold that must be crossed before a statement can give rise to a claim: “[a] statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant” (section 1(1)). There has been uncertainty as to the proper construction and effect of the “serious harm” requirement since it came into force at the beginning of 2014. The High Court has recently clarified the position, in a judgment handed down on 30 July 2015: Lachaux v Independent Print Limited & Ors  EWHC 2242 (QB).
The court held that section 1(1) requires a claimant to prove, on the balance of probabilities, that the statement he/she complains of has caused or will probably cause serious harm to his/her reputation. The common law presumption of damage to reputation will therefore no longer play any significant role. Further, if serious harm must be proven, the common law rule that the cause of action for libel and defamation is actionable per se on publication can no longer be regarded as good law. A cause of action may remain incomplete until serious harm is caused or becomes probable.
The court also gave guidance on a number of procedural issues in the management of defamation claims. In particular, where the “serious harm” requirement is contested, it should usually be tried as a preliminary issue alongside any issue as to the meaning of the words complained of. It will generally be unnecessary and undesirable for a defence to be pleaded before those preliminary issues are determined.
Neil Blake and Thomas Turner, a partner and associate in our media disputes team, consider the decision further below. Continue reading
On 1 January 2014, four important legislative changes concerning the law of defamation will come into force including the Defamation Act 2013. Click here to read our defamation e-bulletin outlining the changes.
The Defamation Bill received Royal Assent on 25 April 2013. The main changes to the current law concern corporations and their ability to sue, website users and scientific/academic journalists. Alan Watts and Louisa Robertson explain the changes below. Continue reading