English Court Clarifies Meaning And Effect Of 'Serious Harm' Requirement Under Defamation Act 2013

The Supreme Court has held that the requirement to show "serious harm" under section 1(1) of the Defamation Act 2013 (the “2013 Act“) 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 [2019] UKSC 27.

The primary purpose of the 2013 Act was to modify some of the common law rules which were seen unduly to favour the protection of reputation at the expense of freedom of expression. In particular, there had been criticism of the law allowing persons resident outside the UK with only very limited reputation within the UK being able to sue for defamation and obtain substantial damages. One of the new principal provisions of the Act 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". This so-called "serious harm" requirement has been the subject of much interest and uncertainty, and the present appeal was the first opportunity presented to the Supreme Court to consider it.

Background

The claimant brought libel proceedings against the defendant news publishers following allegations which arose from the breakdown of Mr and Mrs Lachaux's marriage, resulting in hostile divorce and custody proceedings. The couple resided in the UAE, where Mr Lachaux was granted custody of the couple's only son. Following which, a number of British newspapers published articles making allegations about Mr Lachaux's conduct towards his ex-wife during their marriage and in the course of these proceedings. The publications contained, among other things, allegations of domestic abuse and child abduction.

On a trial of preliminary issues, the High Court (Warby J) held that the effect of section 1(1) of the 2013 Act was to establish a new and more stringent statutory test requiring a claimant to prove, on a balance of probabilities, that a statement has caused or will probably cause serious harm. In assessing "serious harm", Warby J held that the court should have regard to all the relevant circumstances, including evidence of what actually happened following publication. This is in addition to considering the defamatory meaning of the words used, and the harmful tendency of that meaning.

Applying this to the facts, Warby J found that the harm caused by the publications...