This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.
esterday the High Court handed down its first judgment addressing the question of what amounts to "serious harm" in the context of the Defamation Act 2013 (the "Act").
The Court has confirmed that the "serious harm" hurdle that must now be overcome is high.
Summary
Since 1 January 2014, a statement will not be defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. Where a claimant is a body that trades for profit, harm is not serious unless it has caused or is likely to cause serious financial loss. (Our summary of the full changes brought about by the Act can be found here.)
Yesterday's judgment involved a claim brought by a housing association and its chief executive regarding an allegedly defamatory statement published by a newspaper relating to the Benefits Street television programmes.
For the first time the High Court considered the question of what amounts to "serious harm". As the housing association was not a body that traded for profit, it was not necessary to establish serious financial loss.
The claimants were unable to adduce evidence that they had in fact suffered serious harm. The judgment therefore focussed on the likelihood of serious harm being caused and the Court found that:
• it was not enough to show that the alleged defamatory statement is "bound to cause" a change in people's perception;
• an apology published seven days after the allegedly defamatory statement was sufficient to eradicate, or at least minimise any unfavourable impression created by the original article. Importantly, the apology was far more accessible on internet searches than the original article; and
• there will be some statements that are so obviously likely to cause serious harm to a person's reputation that the likelihood can be inferred (for example, if a national newspaper with a large circulation wrongly accuses someone of being a terrorist or a paedophile).
Lessons from the case
In its judgment, the Court has made clear that the bar to prove serious harm has been deliberately set high. The Court has also helpfully indicated that if someone complains that a statement you have published is allegedly defamatory, a swift and prominent apology, correction and/or retraction may greatly assist in defeating any subsequent claim and limit the risk of serious harm being proved.
For a copy of the full judgment, please click here: Cooke & Anr v MGN Ltd & Trinity Mirror Midlands Ltd [2014] EWHC 2831 (QB).
