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ABSTRACT
In Lachaux v Independent Print Ltd, the Court of Appeal held that s 1 Defamation Act 2013 was intended to “raise the bar” for defamation claims above the standard previously demanded at common law. However, despite finding that this was Parliament’s intention in enacting s 1, the Court held that this intention had not been successfully implemented by the wording of the Act. The notion that libel is a tort that is actionable per se is one that has a lengthy heritage at common law. However, an examination of case law between 2005 and 2013 reveals that libel had ceased to be actionable per se long before the new s 1 appeared on the statute books. The Court of Appeal thus based its ruling on a misunderstanding of the pre-Act common law position, resulting in a failure to interpret the Act in a manner consistent with the Parliamentary intention that the Court identified, thereby frustrating that very intention.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 Lachaux and AOL (UK) Ltd v Independent Print Ltd and Evening Standard Ltd [2017] EWCA Civ 1334 (hereafter ‘Lachaux (CA)’).
2 Section 1 of the Defamation Act 2013 provides:
1. – Serious harm (1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.’
3 As a result, the Court of Appeal’s decision also reverses the interpretation of s 1 in two other earlier High Court cases which are essentially aligned with Warby J’s decision in Lachaux (hereafter Lachaux (HC)): Cooke v MGN Ltd [2014] EWHC 2831 (QB), [2015] 1 WLR 895; Ames v The Spamhaus Project Ltd [2015] EWHC 127 (QB), [2015] EMLR 13.
4 Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75, [2005] QB 946.
5 Thornton v Telegraph Media Group Limited [2010] EWHC 1414 (QB), [2011] 1 WLR 1985.
6 Jameel (n 4) [69].
7 Thornton (n 5) [95].
8 [1996] 4 All ER 1008, 1018.
9 Thornton (n 5) [96] (emphasis is original. In Tugendhat J’s original judgment, the word ‘substantially’ is included in square brackets in order to indicate that he added that word as well as the final, italicised section. For clarity, those initial square brackets have been removed here.)
10 Thornton (n 5) [92].
11 Thornton (n 5) [94].
12 It might also be argued that Jameel is limited to cases in which jurisdiction is a live issue. For the reasons explored in the remainder of this short section, that argument does not seem persuasive.
13 English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [1940] 1 All ER 1, 12–13.
14 See e.g. Simon Deakin, Angus Johnston and Basil Markesinis, Markesinis and Deakin’s Tort Law (7th edn, OUP 2013) 638. The most recent edition of Alistair Mullis, Richard Parkes and Godwin Busuttil (eds), Gatley on Libel and Slander (12th edn, Sweet & Maxwell 2013) continued to state (1.5) that libel was actionable per se, although a very recent supplement has now incorporated both the High Court and Court of Appeal judgments in Lachaux.
15 Lachaux (HC) (n 3) [60].
16 ibid [29].
17 ibid [34], citing Cream Holdings Ltd v Banerjee [2004] UKHL 44, [2005] 1 AC 253 [21].
18 See the section entitled “The Court of Appeal Judgment” below.
19 [1993] AC 593.
20 Lachaux (HC) (n 3) [50].
21 ibid [56].
22 ibid [57].
23 ibid.
24 ibid.
25 ibid.
26 ibid [58].
27 ibid [57].
28 ibid [60].
29 ibid.
30 ibid [65].
31 Lachaux (CA) (n 1) [36].
32 ibid [43].
33 ibid [44].
34 ibid [46].
35 ibid.
36 ibid, quoting from Cream Holdings Limited v Banerjee [2004] UKHL 44, [2005] 1 AC 253, [20] (Lord Nicholls).
37 Cream Holdings, ibid [12].
38 Lachaux (CA) (n 1) [49]. Davis LJ cites, as examples, Thornton [93]; Berkoff v Burchill [1996] EWCA Civ 564, [1996] 4 All ER 1008; Andre v Price [2010] EWHC 2572 (QB).
39 Lachaux (CA) (n 1) [58].
40 ibid.
41 ibid [27].
42 ibid [60].
43 Eric Descheemaeker, ‘The Harms of Privacy’ (2015) 7(2) Journal of Media Law 278.
44 For example, Hough v London Express [1940] 2 KB 507, 515.
45 Jameel (n 4) [37].
46 For example, the reversal of the presumption in favour of jury trial in the Defamation Act 2013, s 11.
47 The Strasbourg court has held definitively that art 8 ECHR embraces reputational interests, see Cumpana v Romania (2004) 41 EHRR 200 (GC), [91]; Pfeifer v Austria (2007) 48 EHRR 175, [33], [35].
48 Re S (A Child) [2004] UKHL 47, [2005] 1 AC 593, [17] (Lord Steyn).
49 Reynolds v Times Newspapers Ltd [2001] 2 AC 127.
50 Flood v Times Newspapers Ltd [2009] EWHC 2375 (QB), [2010] EMLR 8, [146].