Seriously defamatory - the Supreme Court raises the bar

In a decision[i] handed down in June 2019, the Supreme Court has made it clear that in order to succeed in an action for defamation the claimant must show serious reputational harm “by reference to the actual facts about [the statement’s] impact” rather than by reference to the “inherent tendency of the words” alone. This represents a modernisation of the law of defamation to give more weight to freedom of expression as opposed to the protection of reputation.

The facts

The events, which achieved some notoriety at the time, revolved around the divorce in 2011 of Bruno and Afsana Lachaux, a French and British couple living in the United Arab Emirates. Bruno sought custody of their son Louis in the UAE, and Afsana went into hiding with the child, saying that she would not receive a fair trial there. Having obtained custody, Bruno then took possession of the child under a custody order. A number of major British newspapers published allegations about Bruno’s conduct towards Afsana during the marriage as well as during the divorce and custody proceedings, and he brought defamation actions against the newspaper publishers.

Did the articles have defamatory meanings?

In a ‘meaning hearing’ at first instance, Judge Eady concluded that the newspaper articles did bear defamatory meanings including that Mr Lachaux had been violent and abusive towards his wife and had “callously and without justification” taken Louis away and had falsely accused his wife of abducting him. However, for the purpose of this trial on the legal issue of what constitutes serious harm the newspapers did not contest the primary facts relied on by Mr Lachaux.

Clarifying the threshold of serious harm

The newspapers argued that their articles were not defamatory, because they did not meet the required threshold of seriousness in S.1.1 of the Defamation Act 2013 (the Act). S.1.1. provides:

“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

Both sides agreed that the intention of S.1.1. was to increase the threshold of seriousness required to succeed. However, Mr Lachaux argued that the Act did not affect the common law presumption of damage to reputation based on the inherent meaning of the words; the effect of the Act was that the inherent tendency of the words must be to cause not just some damage but serious harm. By contrast the newspapers argued that not only must the words be inherently injurious, the statement must also be shown to cause, or to be likely to cause, serious harm in fact.

Actual facts must be taken into account

The Supreme Court agreed with the approach of the newspapers – that the impact of a statement must be determined by reference to the actual facts and not just to the meaning of the words. However, Mr Lachaux was in fact able to demonstrate serious harm in this sense. The Court accepted evidence by reference among other things to estimates of the print runs and readership of newspapers and user numbers for online publications and by showing that the statements had come to the attention of at least one person in the UK who knew Mr Lachaux and were likely to have come to the attention of others who either knew him or would know him in the future. A further factor was the gravity of the statements themselves. The Court also accepted that Mr Lachaux could have put in evidence based on the impact of the statements on witnesses who knew him although in fact he did not.

The impact of the decision

The decision provides welcome guidance in an area which was unclear. It is likely to result in less trivial claims being brought as evidence of harm will be needed in many cases, discouraging frivolous claims. Some commentators have also suggested that the need for evidence is likely to lead to higher costs, potentially discouraging individual claimants.