This is the second article in our series on the fundamental elements of a claim in defamation – this time, we are focusing on the need for the claimant to show that a defamatory statement must have caused or is likely to cause serious harm to their reputation. This is known as the ‘serious harm’ test and is set out in Section 1 of the Defamation Act 2013.
The Lachaux Case
The serious harm test was widely discussed in the landmark case of Lachaux v Independent Print Ltd . We discussed the Supreme Court’s decision in depth in our 2019 article when the judgment was handed down.
Following the breakdown of Mr Lachaux’s marriage, several UK newspapers published a range of allegations regarding his conduct towards his ex-wife. He then issued two libel claims in the High Court – the first in 2014 against the Independent and Evening Standard, and another against the I in 2015.
The High Court held that the publishers had intended to convey that Mr Lachaux was abusive to his ex-wife during their marriage, and had deprived her of custody, amongst other allegations. The High Court found that evidence of the harm caused was serious enough to meet the test. This was later upheld by the Court of Appeal, with a focus on whether the ‘inherent tendency’ of the words used caused damage to Mr Lachaux’s reputation, rather than whether serious harm was caused.
The Decision in Lachaux
The High Court’s decision was appealed to the Supreme Court, which agreed with the original approach taken and dismissed the appeal. The Supreme Court determined that Mr Lachaux had been caused serious harm, based on the following:
- the scale of publication (national newspapers);
- the fact that the statement had been read by people in this jurisdiction who knew Mr Lachaux;
- the likelihood of the publication being read by others who knew or would come to know Mr Lachaux in the future; and
- the gravity of the statements made
Lachaux illustrates the wide range of factors that are taken into account when the court is considering the issue of serious harm.
Recent clarification on the serious harm test
In the more recent and high profile case of Blake & Seymour v Fox, the High Court provided further clarification on the threshold for establishing serious harm.
Mr Lawrence Fox (a well know actor, turned political activist) posted defamatory statements on ‘X’ (formerly twitter) about the Defendants, Blake and Seymour, which included allegations that they were paedophiles. Blake and Seymour were required to prove that the statements had caused or were likely to cause substantial harm to their respective reputations.
The court took four main factors into account:
- Severity of the allegations;
- Amplification by social media;
- Pre-existing reputations; and
- Abuse.
Severity of the allegation
The Court stated that there was an inherent gravity to the allegations as they related to paedophilia. The judgment referenced the case of Cooke v MGN Ltd [2014] EWHC 2831 (QB), where it was said that there are some statements so obviously likely to cause serious harm to a person’s reputation that such harm should be inferred to have been suffered. In Cooke, Bean J gave the example that accusing someone of being a terrorist or paedophile was precisely the type of allegation where ‘the likelihood of serious harm is plain, even if the individual’s family and friends know the allegation to be untrue ‘. The statements made by Mr Fox were regarded as exceptionally grave and cruel allegations.
Amplification by social media
Mr Fox had a very large following on X given that he is a well-known actor and emerging politician, resulting in the tweets reaching a large audience. The allegations were also widely discussed in the mainstream media. Despite the tweets eventually being deleted by Mr Fox, they continued to circulate online via screenshots. The act of deleting the posts did not lessen their reach or impact.
Pre-existing reputation
Both of the claimants had public profiles as gay men and gay rights activists. Mrs Justice Collins Rice stated “the persistent homophobic trope of equivalence…between being a gay man and being a likely paedophile was the petrol-sodden reputational rag onto which Mr Fox’s incendiary tweets landed”. The claimants also worked closely with children, sometimes vulnerable children, in which safeguarding is absolutely crucial. This further increased the damage to their reputations.
Abuse
The evidence presented to the court further illustrated that the claimants had received a significant amount of homophobic abuse on social media following the publication of Mr Fox’s tweets. The impact of the allegations was clear, the claimants had both suffered significant harm as a result of the tweets.
**it should be noted that Mr Fox has subsequently obtained permission to appeal the High Court’s decision, and the Appeal Court’s decision will likely impact the law and guidance on this area**
Key Takeaways
The test for serious harm can be complex to navigate, it is heavily fact dependent (including the nature of the allegations) and recent case law has shed some light on the wide range of factors that the court will take into account when considering whether serious harm has or is likely to have been caused.
It should also be noted that the Defamation Act 2013 expressly sets out that harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss. This will again, be heavily fact dependent, including the nature and size of the claimant’s business -for example, in in the case of Brett Wilson LLP v Persons Unknown, the Court deemed that the loss of a single instruction for a small boutique law firm did constitute serious financial loss.
How can we help?
For further information about issues raised in this article, please contact a member of our Reputation and Risk Management team.
