www.newlawjournal.co.uk | 12 July 2019 LEGAL UPDATE 13

In the substantive High Court hearing, Warby J rejected the newspapers’ argument that the statements were not defamatory because they did not meet the threshold of seriousness in s 1(1) of DA 2013, holding that the claimant had evidentially demonstrated ‘serious harm’. While the Court of Appeal upheld the High Court’s ‘serious harm’ finding and dismissed the newspapers’ appeal, it considered that the 2013 Act left unaffected the presumption of general damage and the associated rule that the cause of action is made out if the statement complained of is inherently injurious.

Supreme Court view Lord Sumption gave a concise summary of Defamation & ‘serious the common law background leading to the Defamation Act 2013. He explained that the law distinguishes between defamation harm’ post Lachaux actionable per se (without proof of damage) and defamation actionable only on proof of Nicholas Dobson applauds the elegance of the judgment special damage. Libel is always actionable in Lachaux, which gives a much clearer basis for future per se but slander is now so in only two circumstances: words imputing criminal consideration of potentially defamatory material offences or those tending to cause injury in a person’s office, calling, trade or profession. All other slanders are actionable only on proof of IN BRIEF that: ‘(1) A statement is not defamatory special damage (ie, pecuniary loss to interests ff Section 1 of the Defamation Act 2013 raises unless its publication has caused or is likely other than reputation). the common law threshold of seriousness and to cause serious harm to the reputation of the Per Lord Atkin in Sim v Stretch [1936] 2 requires its application to be determined by claimant. (2) For the purposes of this section, All ER 1237, 1240, a statement is defamatory reference to actual facts and not merely to the harm to the reputation of a body that trades if ‘the words tend to lower the plaintiff in meaning of material words. for profit is not “serious harm” unless it has the estimation of right-thinking members caused or is likely to cause the body serious of society generally.’ The meaning of an eputation has always been a precious financial loss.’ alleged defamatory statement is derived from commodity. Shakespeare knew this. an objective assessment of the defamatory So in Richard II, Mowbray, feeling Summary background meaning that the notional ordinary R‘pierced to the soul with slander’s The claimant, Bruno Lachaux had lived with reasonable reader would attach to it. At venomed spear’ pleaded passionately that his British wife, Afsana, in the United Arab common law, where defamation is actionable ‘The purest treasure mortal times afford/ Emirates (UAE). The marriage broke down per se, damage to the claimant’s reputation is Is spotless reputation.’ And Cassio in Othello and the claimant in the UAE courts began presumed rather than proved. This depends mourned to evil Iago: ‘Reputation, reputation, divorce proceedings and sought custody on the inherently injurious character of reputation! O, I have lost my reputation, I have of their son, Louis. The matters at issue a statement bearing that meaning. The lost the immortal part of myself.’ arose following reports in various British presumption is one of law, and irrebuttable. So the law long recognised the need to newspapers about the claimant’s conduct In the decade before the 2013 Act two protect reputation from unjustified assault. As during the marriage and the subsequent important cases introduced the requirement Lord Sumption indicated, opening his elegant divorce and custody proceedings. that damage to reputation in a case actionable Supreme Court judgment on 12 June 2019 in In a meaning hearing Eady J found various per se must pass a minimum threshold of Lachaux v Independent Print Ltd and another defamatory meanings in articles published seriousness (see Jameel (Yousef) v Dow Jones [2019] UKSC 27, [2019] All ER (D) 42 (Jun): by The Independent and Evening Standard & Co Inc [2005] QB 946 and Thornton v ‘The tort of defamation is an ancient construct newspapers. He held that the articles (among Telegraph Media Group Ltd [2011] 1 WLR of the common law.’ But whilst this tort has other things) meant that the claimant had 1985). over centuries evolved several unique rules, been violent and abusive towards his wife In the Supreme Court’s view, the language most of these ‘originated well before freedom during their marriage, had hidden Louis’ of section 1 of DA 2013 shows very clearly of expression acquired the prominent place in passport to stop her removing him from the that the measure not only raises the threshold our that it enjoys today’. UAE, had used UAE law and the UAE courts of seriousness above that envisaged in the From 1888 there has been a succession to deprive her of custody and contact with cases just mentioned, but also requires its of statutes seeking ‘to modify existing her son, had callously and unjustifiably taken application to be determined by reference to common law rules piecemeal, without always Louis out of her possession and then falsely actual facts about its impact and not merely to attending to the impact of the changes on the accused her of abducting him. The appeals the meaning of the words in question. rest of the law’. The latest is the Defamation arose out of two high court libel actions Lord Sumption noted that although a Act 2013 (DA 2013). The Lachaux judgment against the publishers of The Independent and statute is presumed not to alter the common concerns the interpretation of section 1. The Evening Standard, and a third against the law unless it so provides either expressly Entitled ‘Serious harm’, the section provides publisher of the i newspaper or by necessary implication, the 2013 Act 14 LEGAL UPDATE Defamation 12 July 2019 | www.newlawjournal.co.uk

‘unquestionably does amend the common the harm done to the claimant’s reputation, complained of had come to the attention law to some degree.’ In his view, section 1 but to the loss which that harm has caused of at least one identifiable person in the UK ‘necessarily means that a statement which or is likely to cause’. The financial loss is the who knew the claimant; and (iii) that they would previously have been regarded as measure of the harm and must exceed the were likely to have come to the attention of defamatory, because of its inherent tendency seriousness threshold. This must necessarily others who either knew him or would come to cause some harm to reputation, is not to be call for an investigation of the actual impact to know him in future; and (iv) the gravity of so regarded unless it “has caused or is likely to of the statement. For whether ‘that financial the statements themselves. Warby J’s finding cause” harm which is “serious”’. loss has occurred and whether it is “serious” was justifiably ‘based on a combination of Moreover, the reference in section 1 to a are questions which cannot be answered by the meaning of the words, the situation of Mr situation where the statement has caused reference only to the inherent tendency of the Lachaux, the circumstances of publication serious harm is to the consequences of the words.’ and the inherent probabilities.’ publication, and not the publication itself. So in the Supreme Court’s view ‘the Lord Sumption said that this ‘points to some defamatory character of the statement no Comment historic harm, which is shown to have actually longer depends only on the meaning of the When a common law construct like occurred’ and ‘is a proposition of fact which words and their inherent tendency to damage defamation evolves piecemeal over many can be established only by reference to the the claimant’s reputation.’ It is to that extent years with various statutory adjustments impact which the statement is shown actually that Parliament intended to change the on the way, it can end up looking like a to have had.’ This depends not only on a common law. As Lord Sumption indicated, ramshackle ‘House that Jack built’. For combination of the inherent tendency of the section 1 supplements the common law by wedging concepts developed in multifarious words but also their actual impact on those to introducing a new condition that relevant previous contexts into subsequent divergent whom they were communicated. In the court’s harm must be ‘serious’ and in the case of statutory installations can end up like badly view, the ‘same must be true of the reference trading bodies that it must result in serious fitted central heating. Nevertheless, Lord to harm which is “likely” to be caused.’ For in financial loss. The court also did not accept Sumption and his Supreme Court colleagues this context, ‘the phrase naturally refers to that its interpretation of section 1 led to any have given a much clearer basis for future probable future harm’. major inconsistency with section 8 (limitation) consideration of potentially defamatory As indicated, s 1(2) of DA 2013 provides or section 14 (slanders actionable per se). material as well as providing important that ‘harm to the reputation of a body that In the circumstances, the Supreme Court protection to freedom of expression for media trades for profit is not “serious harm” unless substantially adopted the legal approach of and others. NLJ it has caused or is likely to cause the body Warby J at first instance. The judge had based serious financial loss’. The court considered his serious harm finding on: (i) the scale of the Nicholas Dobson writes on local government, public law and governance. it clear that section 1(2) ‘must refer not to publications; (ii) the fact that the statements