Serious harm: the new hurdle in defamation cases

Following the implementation of the Defamation Act 2013, defamation claimants must demonstrate that the publication in question caused or is likely to cause ‘serious harm’ to their reputation.  Since the enactment, there has been significant speculation as to what measure of harm will suffice and to what extent this changes the very definition of ‘defamatory’.  In the recent case of Cooke and Midland Heart Ltd v MNG Ltd [2014] EWHC 2831 (QB), Mr Justice Bean gave the first judicial interpretation of the issue.

The second Claimant, Midland Heart, was a housing association, and the first Claimant, Ms Cooke, its chief executive.  The claim centred on a 26 January 2014 article in the Sunday Mirror (and a republication on a local news website) concerning the popular Channel 4 television programme Benefits Street.  The article concerned the owners of property in James Turner Street in Birmingham (the focus of the show) who rent accommodation to people on social security benefits.  The second Claimant was mentioned once towards the end of the long article as being amongst other property owners in the street.  It was noted that Ms Cooke earns £179,000 per annum and lives in a large house in Stroud.  The Claimants argued that the article suggested they were disreputable landlords who ‘raked it in’ by letting out sub-standard houses to people in receipt of benefits, and that Ms Cooke was personally responsible for this conduct and had personally profited from it.  The claim was pursued despite the fact that the Sunday Mirror had printed an apology in the following week’s issue of the paper.

On 23 July 2014, Mr Justice Bean heard the trial of two preliminary issues, namely (1) whether the words complained of bore the meaning claimed or any other defamatory meaning, and (2) whether the publication had caused or was likely to cause serious harm to the reputations of either Claimant.  The issue of meaning was resolved broadly in the Claimants’ favour. The Judge then turned to the issue of serious harm.  The Claimants had submitted evidence of three professional contacts of Ms Cooke raising the article with her following its publication, one of whom had said it was ‘awful’ that the Claimants were associated with disreputable landlords.  However, their claim was based not on the damage in the minds of these individuals in particular but in the minds of the hundreds of thousands of readers of the Sunday Mirror.  It was pointed out that the second Claimant was dependent on grant and contract income for which they bid on competitive tender and that they would often be unaware as to the reasons for the loss of such contracts.  Whilst they were unable to produce evidence about specific individuals who thought less of them as a result of the article, it was submitted on their behalf – in what was really the crux of the issue - that ‘in the nature of these things, such evidence is in practice almost always impossible to obtain’.   In effect, the Claimants argued that where there a serious libel in a major publication, with a large number of readers, it would be bound to pass the serious harm test.  The Judge rejected this argument.  Whilst accepting that in some cases serious harm will be so obvious that the need for evidence can be dispensed with, the examples he gave of such cases were those wrongly accused of being a terrorist or a paedophile in a national newspaper.  The libel in the present case – which was in a national newspaper but was obviously of much less severity – fell far short of that mark.  The Judge attached significance to the apology which the Sunday Mirror had printed in the following week’s issue, finding that this would have been sufficient to eradicate or minimise any unfavourable impression created in the mind of a reader who had read both.  As to readers of the original article who had not read the apology, the Court could not simply infer that serious harm had been caused in the absence of any evidence to that effect.

This decision causes great uncertainty for potential libel claimants (and defendants).  Historically, the Courts have taken a broad brush approach to harm caused.  Though the cases of Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75 and Thornton v Telegraph Media Group [2010] EWHC 1414 (QB) had already established at common law that (1) there had to be a ‘real and substantial’ tort and (2) that there was a ‘threshold of seriousness’ in what could be considered defamatory, these bars would have been of little concern to a claimant who had been accused of ‘making money from the misery’ of the poor in a national paper.  Victims of such prima face serious libels effectively did not have to worry about evidencing it.  Now, the approach in this case suggests that they do.  The emphasis on evidence of serious harm will be amplified where, as in the present case, the defendant has published a swift apology.  The extent to which this will prove practicable remains to be seen.