With defamation cases rarely reaching the Supreme Court, the recent Lachaux judgement provides an excellent opportunity to consider what constitutes “serious harm”. Lord Sumption’s judgement has provided welcome clarification on Section 1 of the Defamation Act 2013 regarding the “serious harm” test.
Lord Sumption’s judgement in the case of Lachaux v Independent Print Ltd. makes it clear that simply demonstrating a ‘tendency’ to cause harm to the reputation of a claimant by publication will never be sufficient. Damage cannot be presumed and must be proved. Therefore, when considering whether to bring a defamation case, one needs to analyse carefully the wider implications of publication in proving that serious harm has occurred. As strategic communications consultants, we are experts in examining such media and social media implications across jurisdictions and geographies.
The 2013 Act introduced a “serious harm” provision: “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” What, however, constitutes “serious harm”? According to the Act, “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.” Harm to an individual’s reputation, however, might not directly result in financial loss, raising the question of how “serious harm” is quantified when applied to an individual.
In 2014, two newspapers published articles in which they cited defamatory allegations about Bruno Lachaux’s conduct during the course of his marriage and subsequent divorce. Perhaps it is easy to overlook the potentially negative outcomes of publishing such allegations relating to a divorce being pursued overseas. Although Mr Lachaux was living in the UAE during the time in question, defamatory statements were communicated to a much wider international audience. This, along with the gravity of the statements and the fact that they had come to the attention of at least one acquaintance of Mr Lachaux, led Mr Justice Warby to rule that the statements had caused “serious harm” to his reputation. Defamation law is no longer a law where damage is presumed, it must now be demonstrated in more certain terms that damage has been caused notwithstanding subjective assessment.
In the original High Court case, the judge ruled in favour of Mr Lachaux but the defendant newspapers appealed to the Court of Appeal. In his judgement, Lord Sumption stated that “serious harm” is proven by, “a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated,” referring to the consequences of communication rather than the actual communication itself. There remains no statutory definition as to what constitutes “serious harm” yet what Sumption’s judgement offers is helpful guidance on which to base future assessments of reputational harm.
Qualifications for “serious harm” are not solely based on the content of the statement; further consequences of publication and wider context must also be considered. The questions we must ask are:
- To whom is the statement communicated?
- How will this impact perceptions of the statement?
- What are the potential social media impacts with regards to cumulative portrayal of harm or defamation?
- How has initial publication of a defamatory statement been picked up, how has it been interpreted and disseminated across media platforms?
- How has another media title perceived the impact of this publication?
For example, if a statement were to be published in a trade publication, it would be communicated more directly to the most influential or affected stakeholders and might be more reputationally damaging than if it were a libellous statement uttered in passing conversation.
The decision, despite offering further clarity, still relies somewhat on the tendency to cause harm rather than actual harm caused. To accurately assess this, it is vital to be across all publications and to have a complete understanding of a publication’s audience and the ultimate impact on its readers. In many cases this will not only include major national or international titles but also influential trade publications which may have a smaller, targeted circulation and stand to cause more “serious” reputational harm to an individual or firm that operates in a specific industry.