The final hurdle for serious harm

Published 4 July 2019

The Supreme Court has handed down its long awaited decision in Lachaux v Independent Print Ltd [2019] UKSC 27. It has concluded that the test under section 1 of the Defamation Act 2013 is not whether the statement has an inherent tendency to cause serious harm, but what the actual impact is on the claimant’s reputation and whether that impact is serious.

In summary:

• A statement is only defamatory if it has caused or is likely to cause “serious harm” to a person’s reputation.
• The seriousness of the harm is not determined solely by the “inherent tendency” of the words to cause damage, but also the consequences of the statement on the person’s reputation, i.e. the actual impact on those individuals to whom it is published. This is a question of fact and there will no longer be a presumption of damage to the claimant.
• The test for “serious harm” under section 1(2) of the Act in relation to a body trading for profit requires there to have been or likely to be serious financial loss caused to the claimant. This additionally necessitates an investigation of the actual impact of the statement on the claimant’s financial position and moreover, whether such loss is serious. This too, is a question of fact and relates not to the harm done to the claimant’s reputation, but to the financial loss suffered as a result of the harm done to its reputation.

Lachaux is a welcome clarification of the “serious harm” threshold and how the question of seriousness is to be considered by the courts. The courts will be expected to pay close attention to the evidence in support of the allegation that a statement has caused or is likely to cause serious harm to a person’s reputation. In practice, the Act has raised the bar for claimants wanting to bring a claim in defamation.

For individuals, this means that witness statements, estimated statistics of online users and the readership/reach of a publication are important examples of evidence that may be required when a party is seeking to prove that it has suffered serious harm from statements published online and on social media. Likewise, businesses will be expected to produce financial results, or anticipated financial results, which may well involve expert evidence at an early stage to support their defamation claims.

Claimants should always remember that there is a limitation period of one year to bring an action for defamation. Even if claimants have not sustained their losses immediately or within that year, they can claim for losses they anticipate they will suffer in the future.