Libel no longer actionable without proof of damage, but damage can be inferred

In Lachaux v Independent Print ([2015] EWHC 2242 (QB) the High Court sought to clarify the meaning of section 1 of the Defamation Act 2013: the requirement for defamation claimants to show that a publication has caused serious harm to reputation or is likely to cause serious harm to reputation.

It has been a matter of some debate amongst media lawyers as to precisely what a claimant is expected to show in order to satisfy the ‘section 1 hurdle'.  Prior to the inception of the Defamation Act 2013 the Court had already developed what is known at the ‘Jameel jurisdiction’ (the principle having been established in Jameel Yousef v Dow Jones & Co. Inc. [2005] EWCA Civ 75) whereby trivial defamation claims can be struck out as an abuse of the court’s process. The court has regularly exercised this jurisdiction where it has taken the view that any damage caused to reputation is so minimal that the cost of obtaining vindication (i.e. the cost to the parties and the burden on the court’s resources) would be disproportionate.

Many commentators have suggested that the introduction of a statutory requirement to show serious harm/the likelihood of serious harm is a modest raising of the existing bar. Indeed, this was broadly what was suggested by the Claimant in Lachaux: that the threshold had increased from ‘substantial harm’ to ‘serious harm’. The Defendants argued that section 1 went further than this, and required a claimant to factually prove that a publication had caused serious harm to his/her reputation or that it was likely to.

The facts

The hearing concerned three separate libel actions brought by the French aerospace engineer Bruno Lachaux.  Mr Lachaux lives and works in Abu Dhabi, but has connections with England.  He sued the Huffington Post, The Independent, i, and the Evening Standard in respect of articles which contained allegations that he was a 'wife-beater' who caused his ex-wife to flee with their son, after which he unjustifiably snatched his son back from her custody, and falsely accused her of kidnapping the boy, causing her unjust prosecution in the UAE for abduction.

Mr Justice Warby determined a number of issues, including whether the articles published satisfied the section 1 hurdle.

The decision

Warby J concluded that section 1(1) requires a claimant to do more than prove that a publication bears a meaning with an inherent tendency to affect, in a seriously adverse way, the attitude of other people to the claimant. He held that it must be proved on the balance of probabilities that the publication has in fact caused serious harm to the claimant’s reputation, or will probably do so in the future [paragraph 65 of the judgment].

Significantly, Warby J went on to conclude that it may be possible to satisfy the test by inference (for example, where a serious allegation was made in a national newspaper). The judge stressed that it was insufficient to focus solely on the words and meaning and that it was necessary to consider all the relevant circumstances of the case, including events after publication.

Having disagreed with the Claimant’s interpretation of the law, Warby J nevertheless found that in four of the five claims the claimant had proved that the publication complained of had caused serious harm to his reputation. The judge found he had done this by inference from the facts that each publication had involved the publication of imputations with a seriously defamatory tendency, in a serious article, in a serious news publication, to a large or at least substantial number of people. The judge further relied on the fact that the Defendant was known by or to a substantial number of people who, it can be inferred, read the publication complained of in one of the relevant places. He also considered it relevant that his reputation amongst those readers in those places to whom was not yet known was a matter of real significance to him.

The fifth publication (one of two Huffington Post articles) was not found to pass the test required by section 1 as it had a small readership and merely repeated some of the allegations from a more prominent publication at the end of the article.

It follows that the judge did not consider the claims amounted to a Jameel abuse of process, although it was not necessary to consider this issue in respect of the second Huffington Post article which did not satisfy the section 1 test.

Warby J also held that a defendant could not prove bad reputation by showing similar allegations had been made by third parties who had not been sued.  However, this did not mean that damages could not be mitigated (pursuant to section 12 of the Defamation Act 1952) where a claimant had sued a third party in respect of the same allegations.

Comment

At first blush the Court’s clarification on section 1 would seem to create what might often be a formidable obstacle for defamation claimants. This is particularly so given the obvious evidential difficulties one can have in proving reputational harm.  However, the decision is significantly tempered by the court having indicated that serious harm can be inferred.  Given the Court’s decision to infer serious harm in this case - with what might be considered relatively low levels of readership - overall the decision may be considered as being more claimant-friendly than it could have been.

The full judgment can be found here.