“No revolution” says the Supreme Court as it rules on defamation

17 June 2019 by Guest Contributor

Lachaux v Independent Print Ltd and another [2019] UKSC 27

The Supreme Court has unanimously held that the Defamation Act 2013 altered the common law presumption of general damage in defamation. It is no longer sufficient for the imposition of liability that a statement is inherently injurious or has a “tendency” to injure a claimant’s reputation. Instead, the language of section 1(1) of the Act requires a statement to produce serious harm to reputation before it can be considered defamatory.

The factual background

Mr Bruno Lachaux, a French national working in the United Arab Emirates, had an acrimonious divorce from his British wife, Afsana. In January and February 2014 British newspapers published articles making allegations about Mr Lachaux’s conduct towards Afsana, including that he had been violent and abusive, had hidden their son’s passport to stop her from removing him from the UAE and had falsely accused her of abducting him.

Mr Lachaux brought libel actions against three newspapers in respect of five articles.

The legal context

Under the common law, defamatory words give rise to an irrebuttable presumption of reputational damage. In deciding whether a statement is defamatory the common law restricts analysis to the words of a statement  and prohibits consideration of extraneous evidence about the circumstances of the publication (e.g. the newspaper circulation or the number of unique webpage hits).

Prior to the Defamation Act 2013 the courts had introduced a minimum threshold of seriousness to defamation claims: first a procedural threshold in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 and then a substantive threshold in Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985. Tugendhat J set out the substantive threshold in Thornton at §96: a statement “may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do”.

On 1 January 2014 the Defamation Act 2013 introduced, amongst other reforms, a “serious harm” requirement. Section 1 reads:

(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

(2) For the purposes of this section, 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.

The decisions of the lower courts

In the High Court ([2016] QB 402) the newspapers unsuccessfully relied on this provision to argue that the articles were not defamatory because they did not meet the requisite threshold of seriousness.

Warby J held that the “natural and ordinary, indeed the obvious” meaning of section 1(1) was that libel is no longer actionable without proof of damage and the legal presumption of damage ceases to play any significant role (§60). When a court decides the question of serious harm it may have regard to all relevant circumstances including extraneous evidence of what has actually happened after publication (§65). On the facts, Warby J, found four articles caused Mr Lachaux serious harm (§§144-153).

The newspapers appealed – which in hindsight proved an error. They lost resoundingly on both the law and the facts. The judgment of the Court of Appeal ([2018] QB 594) essentially resurrected the common law position. Davis LJ held that – “in time-honoured language in this field”  – the words “is likely to cause” in section 1(1) “are to be taken as connoting a tendency to cause” (§§45-50). Such words still gave rise to an irrebuttable presumption of reputational damage, though the 2013 Act also required the “seriousness” of that damage to be proved (§72).

The Supreme Court’s judgment

Lord Sumption gave the unanimous judgment of the Supreme Court (Lord Kerr, Lord Wilson, Lord Hodge and Lord Briggs). At paragraph 11 the Supreme Court sets out the competing interpretations of section 1(1):

• Mr Lachaux’s case was that the 2013 Act leaves “unaffected the common law presumption of general damage” and the effect of section 1(1) is “simply that the inherent tendency of the words must be to cause not just some damage to reputation but serious harm to it”. This was the interpretation preferred by the Court of Appeal.

• The newspapers’ case was that the provision introduces “an additional condition to be satisfied before the statement can be regarded as defamatory, on top of the requirement that the words must be inherently injurious. It must also be shown to produce serious harm in fact” (§10). Proving this may require extraneous evidence. This was the interpretation preferred by Warby J in the High Court.

The Supreme Court came down firmly on the position of the appellants and endorsed Warby J’s reasoning, holding that the language of section 1 shows

very clearly … that it not only raises the threshold of seriousness above that envisaged in Jameel (Yousef) and Thornton, but requires its application to be determined by reference to the actual facts about its impact and not just to the meaning of the words. (§11, §17, §20)

The Supreme Court gave four supporting reasons:

• The Defamation Act 2013 was (according to the preamble) “an act to amend the law of defamation”. The Act unquestionably altered the common law: the least that section 1 achieved was to introduce a new threshold of serious harm which did not previously exist. (§13)

• The language of section 1(1) is concerned with the consequences of the publication. The words “has caused” serious harm refer to the actual impact of the statement on those to whom they were communicated. It follows that the language “likely to cause” refers to the probable future harm of the publication. (§14)

• Section 1(1) must be read alongside section 1(2). Financial loss cannot be determined only by reference to the inherent tendency of the words. “Serious harm” therefore necessarily requires an investigation of the actual impact of the statement (§15).

• Section 1 was “evidently intended as a significant amendment”, but the interpretation advanced by the respondent (that reputational damage be presumed not proved) did not substantially change the common law (§16).

Applying the law to the facts, the Supreme Court approved Warby J’s conclusions that the publications caused serious harm to Mr Lachaux.

The absence of witness evidence from those who had read the defamatory statements about its impact on them was not fatal. Warby J was entitled to draw an inference about the impact of the statements upon readers from considerations like the meaning of the words and the circumstances of publication. Such findings

would only rarely be disturbed by this court, in the absence of some error of principle potentially critical to the outcome. (§21)

Comment

This is the second Supreme Court judgment on defamation law this year – the first being Stocker v Stocker [2019] UKSC 17 (covered by the Blog here).

Interestingly, both overturn more complex Court of Appeal judgments in which a defamation expert (Sharp LJ) was sitting. Lord Sumption’s short judgment is admirable for its clarity and for cutting a way through to a practical result.

The claimant may have won on the facts, but the result is considered a victory for those who campaigned for libel reform. The Court of Appeal judgment had watered down the “serious harm” threshold back to that in Jameel and Thornton, transforming section 1 into a presentational gloss of the common law rather than a substantive provision. The Director of English PEN said “[i]t vindicates our decade-long campaign for a fundamental change to the libel laws” and “expands the space for freedom of expression”.

Section 1 has been restored, but its impact remains uncertain. Lord Sumption commented at §17 that the changes to the common law are no “revolution in the law of defamation”. That comment was stated in the context of considering whether section 1 had a knock-on effect on other provisions in the 2013 Act. However, that statement may hold true more broadly, at least as far as the numbers of claims and the practice of litigating defamation claims are concerned.

The Explanatory Notes to the 2013 Act state that the “serious harm” provision “raises the bar for bringing a claim so that only cases involving serious harm to the claimant’s reputation can be brought”.

However, commentators have noted that – setting aside a spike in 2018 following the Court of Appeal judgment – there was no significant drop in the average annual number of defamation claims issued following the commencement of the Act: between 2010-2013 the average claims per annum totalled 163, and the respective figure for 2014-2017 was 158.

During the consultation on the Defamation Bill, claimant law firms expressed concerns that a harm threshold would create “a burdensome evidence-gathering exercise on claimants, frontloading costs and leading to mini-trials where the issue of substantiality would fall to be considered” (see here). These concerns have been resurrected with the Supreme Court judgment (see here).

In the view of this writer, the Supreme Court judgment is unlikely to revolutionise the practice of litigating defamation claims. The two-day preliminary hearing in Mr Lachaux’s case will remain the exception, not the norm. Section 1 remains a threshold test to filter out spurious and undeserving claims. Defendant publications remain more likely to contest whether statements bear defamatory meaning than contend that they did not cause serious harm.  In the majority of cases, proving serious harm will be a simple exercise and not require lengthy evidence: the circumstances of publication will readily permit an inference (e.g. national newspapers with wide circulation figures).

In any event, in cases where serious harm is in dispute, it will not necessarily result in a lengthy preliminary trial. The test does not impose onerous and costly evidential requirements on claimants. The Supreme Court expressly held that while claimants are entitled to provide witness evidence about the impact of statements, there is no requirement and cases will not “necessarily fail for want of such evidence” (§21). Where relevant “impact” evidence is adduced it could be as simple as an email passing comment on the article. As 5RB, a specialist media law chambers, point out here, Court of Appeal guidance remains that evidential disputes arising from the serious harm test may be best resolved as part of the ultimate trial.

Revolution or not, some women’s rights groups were unhappy with the result. Southall Black Sisters and the Centre for Women’s Justice – who were refused permission to intervene in the Supreme Court – consider that the judgment will have a “chilling effect” with rich perpetrators using defamation as a tool to silence women from discussing gender-based violence in the media (see here).

However, this is a criticism targeted at Warby J’s factual findings, rather than the Supreme Court’s reinstatement of the “serious harm” principle. Moreover, the concern is premature: this was an appeal on a preliminary issue and the newspapers have not yet argued their public interest defence. It remains to be seen whether or not Mr Lachaux will ultimately be successful in his claim.

Clare Duffy is a pupil barrister at Doughty Street Chambers.

Jonathan Price from Doughty Street Chambers was junior counsel for the appellants in this case. The views expressed in this blog post are solely the author’s own.