It is 6 years since judgment was received in the matter of Thornton v Telegraph Media Group [2011] EWHC 1884 (QB). Taylor Hampton successfully acted for Dr Sarah Thornton in her claim for libel and malicious falsehood, arising out of the defamatory and false review of Dr Thornton’s book ‘Seven Days in the Art World’ authored by Lynn Barber and published in the Daily Telegraph newspaper.
By that review, Ms Barber falsely claimed that Dr Thornton had given ‘copy approval’ to those interviewed for the book (“the Copy Approval Allegation”) and that she had not interviewed Ms. Barber, as Dr Thornton had claimed she had, during the course of her research (“the Interview Allegation”).
Taylor Hampton succeeded in obtaining for Dr Thornton £50,000 damages for the libel in respect of the Interview Allegation and £15,000 for malicious falsehood in respect of the Copy Approval Allegation.
Whilst the case was notable for being the first time an “offer of amends” defence was overturned at trial and for being the first finding of malice in a case more generally for many years, its true legacy was the requirement at common law of a ‘threshold of seriousness’ for a claim in defamation to be actionable.
The Thornton threshold
Thornton v Telegraph Media Group [2010] EWHC 1414 (QB) was a seminal judgment by which Tugendhat J introduced a ‘threshold of seriousness’ test in determining whether a statement is ‘defamatory’.
Underlying all defamation disputes are the competing rights of reputation and freedom of expression. In raising the bar for defamation claims to be actionable, the ‘threshold of seriousness’ test shifted the balance of defamation law in favour of the freedom of speech over the right to a reputation.
Defamation Act 2013
This test has subsequently been recognised and codified by Parliament under Section 1(1) of the Defamation Act 2013 with the statutory requirement that a statement must cause, or be likely to cause, “serious harm” to the reputation of a Claimant for it to be considered defamatory for the purposes of the Act. In relation to corporations, subsection (2) further states that companies must have suffered, or be likely to suffer, serious financial loss to pass the serious harm threshold.
Underlying the reform was the need to filter out perceived trivial claims, in line with the rationale in Jameel (Yousef) v Dow Jones [2005] EWCA Civ 75 which established that there must be a real and substantial tort for a defamation case to be brought to court. The Act also clarified the interaction between Articles 8 and 10 of the ECHR. Whilst freedom of expression does not fundamentally override the right to a reputation, the ‘threshold of seriousness’ raises the bar to actionable claims in defamation, thereby tending to favour freedom of expression.
Post-enactment
The Act triggered discussions concerning access to justice and the effect of increased costs on the freedom of speech. The reason for this is that the serious harm threshold test may require evidence to be brought at the start of proceedings to establish whether a publication was defamatory, thereby causing a front-loading of costs. Conversely, if the key question of whether a publication is defamatory in relation to crossing the threshold can be resolved early in proceedings, fewer cases will inevitably need to run expensively through to a trial. It remained to be seen how high the bar had been raised and what evidence would sufficiently demonstrate that serious harm has been or is likely to be caused.
The case of Cooke v MGN [2014] EWHC 2831 (QB) was the first to follow the change in the law in which the ‘serious harm’ threshold was not passed, demonstrating that the Thornton test had raised the bar. It highlighted that the 2013 Act undermined the common law presumption of damage as the Act forces the claimant to prove actual or ‘likely’ harm to reputation. In practice, this can also mean that a full and prompt apology can mitigate reputational harm done.
Lachaux v Independent Print [2015] EWHC 2242 (QB), another case in which Taylor Hampton acted for the Claimant, reinforced the notion that the court is not confined to considering only the defamatory meaning of the words and the harmful tendency of that meaning. It must be proven as a fact on the balance of probabilities that serious reputational harm has been caused, or is likely to be caused. The court, therefore, may have regard to all the relevant circumstances, including evidence of what has actually happened after publication. However, ‘serious harm’ is not as high a hurdle as the Cooke decision suggested as such harm can continue to be proven by inference based on the gravity of the imputation and the extent and nature of its readership which may not require evidence. The decision in Lachaux is currently subject to appeal and the reserved judgment is expected imminently.
As platforms of speech and expression change, so does the law. For example, in relation to social media, it was held in the case of Lord McAlpine of West Green v Bercow [2013] EWHC 981 (QB) that a tweet could contain a sufficiently serious defamatory statement. In the recent case of Monroe v Hopkins [2017] EWHC 433 (QB) it was explicitly made clear that the notion that Twitter is ‘not a serious arena of debate and expression’ is no longer held to be true. The qualification for ‘serious harm’ did not rely on further evidence, but simply that the tweets had ‘a tendency to cause harm to this claimant’s reputation in the eyes of third parties, of a kind that would be serious for her’.
The more rulings that emerge on the issue of ‘serious harm’, the clearer the threshold line will become.