In Lachaux v Independent Print Ltd & Ors the High Court has given further guidance as to what constitutes “serious harm” under section 1 of the Defamation Act 2013.
The claimant, a French national working as an aerospace engineer in the United Arab Emirates, brought libel actions against three publishers in respect of five articles, published between 20 January and 10 February 2014. The claims related to publication in England and Wales and online publication in Dubai.
The defendants were Independent Print Ltd in respect of articles published in The Independent newspaper and its sister paper the ‘i’, Evening Standard Ltd in respect of an article in the London Evening Standard, and AOL in respect of two articles appearing on the Huffington Post.
Each of the articles complained of contained an account of events in the UAE, including proceedings against Mr Lachaux’s ex-wife for allegedly ‘kidnapping’ the couple’s son. The articles reported allegations against Mr Lachaux said to have been made by his ex-wife who was described in one of the articles as a ‘British victim of domestic abuse’.
The court considered various preliminary issues, in particular whether the publication of the words complained of satisfied the new serious harm test. Under section 1(1) of the Defamation Act 2013, a statement is not defamatory unless it has caused or is likely to cause serious harm to the claimant’s reputation.
- In relation to “serious harm” the court considered two key issues:
- Whether under section 1(1) a claimant must prove:
- that the offending words have a tendency to cause serious harm to their reputation; or
that serious harm to the their reputation has in fact been caused or is likely to be caused.
- Whether the court can and should take any, and if so what, account of other publications to the same or similar effect as the material complained of (the “rule in Dingle”).
In relation to the first issue, the court held that it is now necessary to prove as a fact on the balance of probabilities that serious reputational harm has been caused by, or is likely to result in future from, the publication complained of. In determining whether this is the case, the court may have regard to all the relevant circumstances, not just the words complained of and their meanings, including evidence of what has actually happened after publication.
The judge also suggested that serious harm may be proved by inference, stating that “the serious harm requirement is capable of being satisfied by an inferential case, based on the gravity of the imputation and the extent and nature of its readership or audience.”
The court indicated that the point at which to judge whether a statement is ‘likely to’ cause serious harm is when the issue is determined, not at the date of issue, as was preferred in Cooke v MGN.
In relation to the second issue, the court said that the rule in Dingle remains good law, and that (subject to section 12 of the Defamation Act 1952) other publications cannot be admitted into evidence for the purposes of limiting or reducing damages with reference to the seriousness of injury to reputation.
The court decided the claimant met the “serious harm” threshold in all but one of the articles. It was significant that the statements were made in serious articles by reputable publishers with wide readerships.
Following the judgment in Cooke v MGN, it was widely thought that the serious harm test in the Defamation Act 2013 had raised the bar in launching successful libel claims.
This is reinforced by the judgment in Lachaux, where the court acknowledged that libel is effectively no longer actionable without proof of damage. The serious harm requirement is clearly factual, not just based on the meaning of the words used, and the need to adduce positive evidence of serious harm may cause significant difficulties for some claimants.
However, it is also clear that the serious harm test may be satisfied using inference, and may therefore not be as high a bar as previously thought.