Defamation: case law update on the application of the 'serious harm' test

In Alvaro Sobrinho v Impressa Publishing SA [2016] EWHC 66 (QB) the High Court held that an article written in a Portuguese publication about allegedly illegal activity carried out by a banker did not satisfy the 'serious harm' test as set out in section 1(1) of the Defamation Act 2013. The Court also held that the claim was an abuse of process.

Background

The Claimant was a Portuguese banker, Alvaro Sobrinho, who is a resident of Switzerland and who primarily conducts business in Angola. The Claimant’s primary connection to this jurisdiction is that he is the founder and chairman of a charity registered in England and based in London.

On 7 June 2014 the Defendant, a weekly Portuguese newspaper, published an article, both in print and online form, which made various allegations about the Claimant. These included that he, as the CEO of an Angolan bank, acted incompetently and without proper compliance with regulations and procedures which left the bank with a large percentage of its loan portfolio at risk of being irrecoverable, resulting in the bank having to receive a sovereign guarantee from the Angolan state, and that he had fraudulently misappropriated funds from the bank.

Whilst the Defendant’s newspaper had a weekly circulation of just under 90,000 in Portugal, it only had a copy circulation of 136 in England and Wales, in addition to 52 digital subscribers. The Claimant issued defamation proceedings in both Portugal and England and Wales.

In December 2014 the Claimant gave televised evidence to a Portuguese parliamentary inquiry, in which he said he was able to “put the record straight.”  In April 2015 he therefore discontinued his civil proceedings in Portugal as he felt that his reputation had been vindicated in his home country.

The Judgment

The Court had to consider whether or not the Claimant had suffered ‘serious harm’ in accordance with section 1(1) of the Defamation Act 2013.

The Court found that the circulation and readership of the article was limited in this jurisdiction and it concluded that as a result of this the Claimant was not able to rely on any inference that may be drawn from the publication of very serious allegations by a newspaper with a large circulation in this jurisdiction.

Unlike in the proceedings that the Claimant brought in Portugal, he was unable to specify any instances in this jurisdiction where any individual had read the article and then subsequently personally confronted him about the allegations.  The Claimant relied on evidence from six individual associates who gave evidence to the Court that several companies had recently ceased supporting the Claimant’s charity, however he was unable to convince the Court that this was as a result of reading the article.

The Court held that it was particularly important that the Claimant had had his reputation vindicated in Portugal as a result of the parliamentary inquiry and the Claimant himself stated that as a result “I have achieved all that I could expect to have achieved through proceedings there [in Portugal] perhaps more.” The parliamentary inquiry was covered by the Portuguese media (articles about it were widely available online in this jurisdiction) and therefore the Court held that if the Claimant’s reputation was vindicated in Portugal as a result of the media coverage, then it must also have been restored in this jurisdiction.

The Court concluded that the article had not caused serious harm to the Claimant’s reputation in this jurisdiction and was not likely to do so. The Court was unable to identify specifically why no serious harm was caused by the article, but suggested various reasons as to why that might be the case, for example the very limited extent of the publication, the fact that the Claimant seemingly had a good reputation in this jurisdiction and no readers therefore believed the article so far as it referred to the Claimant himself, and because the Claimant was able to put the record straight at the Portuguese parliamentary inquiry.

As a result the Court also concluded that the proceedings were a Jameel abuse of process and “not worth the candle” due to the fact that the parliamentary inquiry had vindicated the Claimant’s reputation in Portugal and the media coverage of that inquiry was also available in this jurisdiction.

Comment

This case provides very useful guidance on the practical application of the ‘serious harm’ test particularly in circumstances where the Claimant’s reputation has been vindicated in another jurisdiction. It serves as a further reminder to claimants of the importance of being able to prove to the court that they have suffered (or are likely to suffer) serious harm to their reputation. This needs to be tangible otherwise there is the risk (as in this case) that the claim will fail even in circumstances where the allegations made are particularly serious.

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