Defamation solicitors at Taylor Hampton explain the development of the new “serious harm” requirement under the Defamation Act 2013, which arose from the firm’s involvement in the landmark Thornton v Telegraph Media Group case.
The first step in suing for defamation is establishing that the statement was defamatory.
There is no single definition of what is meant by “defamatory”. Prior to the Defamation Act 2013 coming into force in January 2014, the answer was to be found wholly in case law.
The Thornton “threshold”
In Thornton v Telegraph Media Group Ltd  EWHC 1414 (QB), a review of Dr Thornton’s book accused her of the practice of “copy approval” in interviews, a practice disapproved of by journalists, and of dishonestly claiming that she had carried out an interview as part of her research.
Tugendhat J endorsed the submission that whatever definition of “defamatory” is adopted, the words complained of must pass a “threshold of seriousness, so as to exclude trivial claims”. Building on the House of Lords decision in Sim v Stretch (1936) 52 TLR 669, the Judge held that the publication must substantially affect in an adverse manner the attitude of other people towards the Claimant, or have a tendency so to do. Dr Thornton succeeded both in relation to her libel and malicious falsehood claims.
A “real and substantial” tort
Trivial cases will be struck out on the basis of abuse of process if there is very little at stake. The Court of Appeal in Jameel (Yousef) v Dow Jones & Co Inc  EWCA Civ 75 established that there needs to be a real and substantial tort within the jurisdiction for a defamation claim to be made. The term “Jameel abuse” is used, for instance, in cases where very low publication has taken place or where the claimant has already achieved vindication by other means.
“Serious harm” under the Defamation Act 2013
The Defamation Act 2013 sets out a new statutory threshold for determining whether or not a statement is defamatory. Section 1 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”.
Section 1 builds upon existing case law on what is sufficient to establish that a statement is defamatory. The provision is intended to raise the bar for bringing defamation claims. The extent to which it does so turns largely on how “likely” is interpreted by the courts.
The term “likely”, the Explanatory Notes to the Act state, covers situations where the harm has not yet occurred at the time the action for defamation is commenced. Whether this refers to the possibility of some future event occurring or the nature of the statement as one that is likely to cause serious harm to the reputation of the claimant is unclear on the face of the legislation. In light of the Government’s express rejection of the Thornton “tendency” test, the latter interpretation seems unlikely.
Concerns were expressed during the passing of the bill that the provision would lead to an increase in costs as evidence would have to be introduced on the question of whether a statement is defamatory.
Such a front-loading of cost has been said to be justified as a means of ensuring that only cases involving serious harm proceed to trial.
Cooke v MGN Ltd
In August 2014, the first decision on the new serious harm test was handed down by Bean J,  EWHC 2831 (QB). The Sunday Mirror published an article suggesting that the Claimants, a housing association, had significantly benefited from the misery of occupants, most of whom were on benefits, living in properties said to be in a state of disrepair. Following correspondence between solicitors, the Sunday Mirror published an apology on page 2 of the following edition, although the apology was not agreed between the parties.
Finding that the publication had not caused serious harm to the Claimants’ reputation, the Judge considered “likelihood” and held that the date at which one looks backwards (to see whether substantial harm has been caused) or forwards (to see whether substantial harm is likely to be caused) was the date on which the claim was issued.
Significant importance was attached to the apology. It had been sufficient, the Judge held, to eradicate or at least minimise any unfavourable impression created by the original article in the mind of the hypothetical reasonable reader who read both. As for those who had not read the apology, the Judge noted that the apology was now far more accessible on internet searches than the original and that only somebody actively trying to find the original article would come across it. The article therefore was not one which was “likely to cause serious harm” to the Claimants’ reputations.
“Serious” was held to be an ordinary word in common usage. The Judge refused to accept that in every case evidence would have to be required to satisfy the serious harm test. Some statements were so obviously likely to cause serious harm to a person’s reputation that likelihood could be inferred (such as allegations of terrorism or paedophilia).
What to take away from Cooke
Unless Cooke is overturned by the Court of Appeal (Bean J granted permission to appeal on 26 September 2014), the moment at which the serious harm test is to be assessed is at the issue of proceedings (as opposed to the moment of publication). In his subsequent decision on costs, Bean J awarded the claimants their costs up to and including the publication of the apology by the Defendants, saying that it was “entirely reasonable in the present case for the Claimants to consult lawyers and for them to write as they did and to expect the prompt publication of an apology and the payment of such costs as were reasonably incurred in attaining that apology”. Costs were awarded to the Defendants from that point onwards.
If you feel that have any questions on the new “serious harm” threshold, please contact our defamation solicitors at Taylor Hamptons Solicitors on 020 7353 1238.