In Cooke v MGN Ltd, the High Court addressed for the first time the new “serious harm” threshold test in section 1 of the Defamation Act 2013.
The claim followed an article in the Sunday Mirror published on 26 January 2014 entitled “Millionaire Tory Cashes In On TV Benefits Street” highlighting the poor condition of some rental properties on James Turner Street, as featured in the Channel 4 series Benefits Street. The article primarily described the very poor conditions in properties owned by a landlord who was not a party to the proceedings.
One paragraph of the article referred to the claimants (the First Claimant, Ms Cooke, being the chief executive of the Second Claimant, Midland Heart Ltd, a housing association which owned three homes on the street). Following initial correspondence between solicitors for the parties an apology had been printed in the next edition of the Sunday Mirror.
It was the claimants’ case that the article meant that Midland Heart was making huge profits by renting out, at inflated rates, sub-standard properties to people who receive housing benefit. It was also alleged that the article suggested that as chief executive Ms Cooke was personally responsible for this, and had become wealthy as a result.
The issues to be addressed were on the meaning of the words, and as to whether the article had caused, or was likely to cause, serious harm to the reputations of either or both of the claimants.
On the serious harm test, the court indicated that in such cases the word “serious” was to be treated as an ordinary word in common usage, and was therefore unambiguous.
Section 1 of the Act provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. The court’s view was that the date at which one looks backwards to see whether substantial harm has been caused, or forwards to see whether it is likely to be caused, is the date on which the claim is issued. Counsel submitted that serious harm was “likely” to occur where the court is satisfied that it is more probable than not.
The court held that in some cases, such as an incorrect allegation that somebody is a terrorist or a paedophile, it would be plainly obvious that the statement would be likely to cause serious harm to a person’s reputation and evidence of serious harm would not be required. However, the court considered that this scenario was not applicable and the claimants would therefore need to provide evidence of serious harm. Although witness statements had been submitted, there was no specific evidence that the article had caused serious harm to date, and none to show it was more likely than not that there would be such harm in the future. The claimants had failed the serious harm test.
Points to note
The apology published swiftly, even though not agreed by the claimants, was clearly significant and was held to be sufficient to eradicate or at least minimise any negative impression created by the article for readers of both. For those who had read the original but not the apology, it was important that the apology was more readily available on internet searches than the original article.
This case illustrates that the new serious harm test has raised the bar in launching successful libel claims. It is not clear what evidence will be sufficient for the test in cases where evidence is required. And there is as yet untested the issue in section 1(2) of the Act which requires that bodies that trade for profit need to show the publication has caused or is likely to cause serious financial loss.