On 12 June 2019, clarification was provided by the Supreme Court on what a prospective claimant has to prove in order to get a defamation claim under section 1(1) of the Defamation Act 2013 (“the Act”) off the ground.
Section 1(1) states that: “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”
Mr Lachaux was married to a British woman (A) and the couple lived in the United Arab Emirates (“UAE”) with their son. Following the break-down of their marriage Mr Lachaux sought a divorce and custody of his son. A then went into hiding, fearful that she would not receive a fair trial in the UAE. In August 2012, the UAE court awarded custody to Mr Lachaux and by October 2012 Mr Lauchaux’s son was taken into his care. Mr Lachaux subsequently commenced criminal proceedings against A for abduction of their son.
Over a year later, in January and February 2014, several British newspapers published a range of allegations against Mr Lachaux regarding his conduct towards A. As a result, Mr Lachaux brought two libel/defamation actions in the High Court. The first against the publishers of the Independent and Evening Standard in December 2014 and the latter against the publisher of The I on 23 January 2015.
The High Court held that the Independent and Evening Standard respectively published eight and twelve defamatory statements against Mr Lachaux. They were intended to convey that Mr Lachaux was abusive to A during their marriage, he had hidden his son’s passport to stop A taking him out of the UAE and used the UAE’s legal system to deprive A of custody without justification. The articles also implied that Mr Lachaux had falsely accused A of abducting their son.
Interestingly the papers didn’t deny the statements were made. Instead they relied upon an argument that the statements made about Mr Lachaux did not meet the “serious harm” test set out in section 1(1) of the Act. The High Court found that evidence of the harm caused was in fact “serious” enough to meet the test and this was upheld by the Court of Appeal. However, the Court of Appeal focused on the “inherent tendency of the words to damage Mr Lachaux’s reputation”, rather than whether serious harm was caused.
Prior to 2013, defamation claims were easy to commence in England and Wales. The Act was controversial as it made it significantly harder for potential claimants to bring a claim. A claimant must now establish that their reputation has suffered “serious harm” due to the publication of a defamatory statement. However, the case law that followed was unclear on how the law should be interpreted.
The Supreme Court agreed with the High Court’s original finding that Mr Lachaux had been caused “serious harm” (despite it being largely implied in this case). The finding was based on a combination of the following factors:
The Supreme Court clarified that claimants must now demonstrate that they have suffered “serious harm” by reference to the facts, not just based on the implied meaning of the words used. The combination of the “inherent tendency of the words” and proof of their actual impact on the claimant is needed.
Finally, the Supreme Court found that for a corporate entity, the measure of “serious harm” will be deemed as a “serious financial loss” which requires an actual impact analysis.
While the Supreme Court’s decision is not a happy outcome for the British newspapers in this case; it brings welcome clarity on the “serious harm” test under the Act. “Serious harm” will not be dependent on worst possible interpretation of a defamatory statement, rather it will need to be clearly evidenced on the facts of the case.