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ABSTRACT
On 1 January 2014, the Defamation Act 2013 came into force, introducing in its section 1 a new requirement of serious harm. This paper offers a critique of the serious harm requirement as it has developed in the case law, in light of the objectives that were set for section 1 in the Defamation Bill.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Mathilde Groppo completed her doctorate at King's College London. She is undertaking her qualification to practice in France, and has a special interest in media law and data protection.
Notes
1 Joint Committee on the Draft Defamation Bill, First Report: Draft Defamation Bill HL 203, HC 930-I (2011–12) 27.
2 Theedom v Nourish Training (t/a Recruitment Colin Sewell) [2015] EWHC 3769 (QB) [14].
3 Cooke & Anor v MGN Ltd & Anor [2014] EWHC 2831 (QB); Ames & Anor v The Spamhaus Project Ltd & Anor [2015] EWHC 127 (QB); Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB); Brett Wilson LLP v Person(s) Unknown, Responsible for the Operation and Publication of the Website www.solicitorsfromhelluk.com [2015] EWHC 2628 (QB); Umeyor v Nwakamma [2015] EWHC 2980 (QB); Theedom (n 2); Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB).
4 Knupffer v London Express Newspaper Ltd [1944] UKHL 1, [1944] AC 116 [120].
5 Thornton v Telegraph Media Group Ltd [2010] EWHC 1414, [2011] 1 WLR 1985 [96].
6 In this sense, see the test of ‘defamatory’ as formulated by Neill LJ in Gillick v BBC [1996] EMLR 267 [25]: ‘A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally.’
7 Defamation Act 2013, s 1(1).
8 Joint Committee on the Draft Defamation Bill, First Report (n 1) [27].
9 Thornton (n 5) [90].
10 Ibid [96].
11 Although, as will be explained, the apparently minor changes of formulation have had important practical consequences on the substance of the law of defamation.
12 Ministry of Justice, Draft Defamation Bill Consultation, Consultation Paper CP3/11 (Cm 8020).
13 Defamation Act 2013, Explanatory Notes [10].
14 Ministry of Justice, Draft Defamation Bill Consultation (n 12) [7], 73.
15 Ibid.
16 In this sense: Lachaux (n 3) [50].
17 Cooke (n 3).
18 Ibid [12].
19 Ibid [37].
20 Ministry of Justice, Draft Defamation Bill Consultation (n 12) 69.
21 Joint Committee on the Draft Defamation Bill, First Report (n 1) [28].
22 Ibid.
23 The Government's Response to the Report of the Joint Committee on the Draft Defamation Bill (Cm 8295), [10].
24 Ibid.
25 Cooke (n 3) [38].
26 Pepper (Inspector of Taxes) v Hart [1992] UKHL 3, [1992] 3 WLR 1032.
27 Cooke (n 3) [39].
28 Ibid [38].
29 Ibid [44].
30 Lachaux (n 3).
31 Ibid [30].
32 Ibid [38].
33 Ibid, citing counsel's Skeleton Argument.
34 Ibid [45].
35 Cooke (n 3) [26].
36 Lachaux (n 3) [64].
37 Ibid [86].
38 Ibid [60].
39 Ibid [41].
40 Ibid [46].
41 Ibid [50].
42 Ibid [60].
43 See, for instance: Alastair Mullis and Andrew Scott, ‘The Swing of the Pendulum: Reputation, Expression and the Recentering of English Libel Law’ (2012) 63 Northern Ireland Legal Quarterly 27; Paula Giliker, The Europeanisation of English Tort Law (Hart 2014).
44 Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75, [2005] QB 946 [32–41].
45 Lachaux (n 3) [60].
46 Thornton (n 5) [96].
47 Ibid [29].
48 Cooke (n 3) [33]; Lachaux (n 3) [49].
49 Lachaux (n 3) [68].
50 In this sense: Gavin Phillipson, ‘The “Global Pariah”, the Defamation Bill and the Human Rights Act’ (2012) 63 Northern Ireland Legal Quarterly 149, 157; Eric Barendt, Laurence Lustgarten, Kenneth Norrie, and Hugh Stephenson, Libel and the Media: The Chilling Effect (OUP 1997); Ian Loveland, Political Libels. A Comparative Study (Hart 2000); Dario Milo, Defamation and Freedom of Speech (OUP 2008).
51 Cooke (n 3) [41] c.
52 Ibid [43].
53 Ibid.
54 Ibid: ‘a national newspaper with a large circulation wrongly accuses someone of being a terrorist or a paedophile.’
55 Ames (n 3).
56 Ibid [14].
57 Ibid [23]. In the alternative, they applied for summary judgment: [24].
58 Ibid [92] x.
59 Cooke (n 3) [42] f.
60 Ames (n 3) [55].
61 Ibid (n 3) [92] vii.
62 Lachaux (n 3) [57].
63 Ibid [138].
64 Ibid [139].
65 Ibid [140].
66 Ibid [144–154].
67 Brett Wilson (n 3).
68 Ibid [26].
69 Ibid.
70 Ibid [29] ix.
71 Umeyor (n 3).
72 Ibid 52.
73 Ibid.
74 Theedom (n 2).
75 Ibid [29] a.
76 Sobrinho (n 3).
77 Ibid [75].
78 Ibid [93–94].
79 Ibid [47].
80 A v Norway (28070/06, 9 April 2009) [64]; Karakó v Hungary (2011) 52 EHRR 36 [23]; Axel Springer AG v Germany (2012) 55 EHRR 6 [83]. On this development: Alastair Mullis and Andrew Scott, ‘Reframing Libel: Taking (All) Rights Seriously and Where It Leads’ (2012) 63 Northern Ireland Legal Quarterly 5, Tanya Aplin and Jason Bosland, ‘The Uncertain Landscape of Article 8 of the ECHR: the Protection of Reputation as a Fundamental Right?’ in Andrew Kenyon (ed), Comparative Defamation and Privacy Law (Cambridge University Press 2016), 265–290.
81 On the indirect nature of the protection of reputation under article 8, see Aplin and Bosland (n 80).
82 Indeed, in recent years the right to reputation has been drawn within the scope of the article 8 ECHR right to private life. This is affirmed both in the European Court of Human Rights and in domestic courts. Notable Strasbourg cases are: Chauvy v France (2005) 40 EHRR 610 [70]; Radio France v France (2005) 40 EHRR 29 [31]; Cumpana v Romania (2005) 41 EHRR 20; Pfeifer v Austria (2007) 48 EHRR 175 [33], [35]; White v Sweden (2008) 46 EHRR 3; Lindon, Otchakovsky-Laurens and July v France (2008) EHRR 35; Karakó (n 80); Springer AG (n 80). This approach is recognised and followed in English courts: John v MGN Ltd [1997] QB 586, [1996] 2 All ER 35 [37]–[42]; Reynolds v Times Newspapers Ltd [2001] 2 AC 127, [1999] 4 All ER 609; Flood v Times Newspapers Ltd [2012] UKSC 11, [2012] 2 AC 273; King v Lake (1667) 145 ER 552, (1667) Hardres 470; Joseph v Spiller [2010] UKSC 53, [2011] 1 All ER 947; Horrocks v Lowe [1975] AC 135, [1974] 1 All ER 662.
83 In this sense: A v Norway (n 80) [65].
84 Mullis and Scott (n 80).
85 Ministry of Justice, Draft Defamation Bill Consultation (n 12) 3.
86 Theedom (n 2) [15] f.
87 Cooke (n 3) [43].
88 Mullis and Scott (n 80).
89 Ibid 5.
90 Ibid 12.
91 Ministry of Justice, Draft Defamation Bill Consultation (n 12) 3.
92 Mullis and Scott (n 80) 12. Contra David Howarth, ‘The Cost of Libel Actions: A Sceptical Note’ (2011) 70 Cambridge Law Journal 397.
93 House of Commons: Culture Media and Sport Committee, Press Standards, Privacy and Libel (2010) [280]: ‘some specialist claimant solicitors regularly charge £400 to £600 per hour.’
94 Mullis and Scott (n 80) 12.
95 The ‘Jackson Review’ of the rules and principles governing the costs of civil litigation was published in January 2010: Lord Justice Jackson, Review of Civil Litigation Costs: Final Report (TSO 2010). The Report made a number of recommendations in order to promote access to justice at proportionate cost. Specifically in relation to defamation, it considered that the present system was ‘the most bizarre and expensive system that it is possible to devise’ ([3.8]) and that this was due to the widespread use of CFAs with ATE insurance, ‘which can impose a disproportionate costs burden on defendants’ ([5.10]). The Report recommended, for all civil litigation, that CFA success fees and ATE premiums not be recoverable from the losing party. To counter the negative effect on the right to access to justice for defamation claimants, it also recommended increasing the general level of damages by 10% and introducing a regime of qualified one way costs shifting, under which the amount of costs that an unsuccessful claimant may be ordered to pay was a reasonable amount, reflective of the means of the parties and their conduct in the proceedings ([5.10]).
96 These recommendations have yet to be implemented. The implementation of the rule that CFA success fees and ATE premiums should not be recoverable from the losing party was deferred until a costs protection regime was established. One such regime was proposed in 2013, however the proposal has not progressed since the consultation process was closed on 8 November 2013, and so the issue of costs of libel proceedings was left intact. See The Government's Response to Reforming Civil Litigation Funding and Costs in England and Wales – Implementation of Lord Justice Jackson's Recommendations (Cm 8041).
97 Press Standards, Privacy and Libel (n 93) [285].
98 See above n 91.
99 Ministry of Justice, Draft Defamation Bill Consultation (n 12) 3–4.
100 Ibid; Joint Committee on the Draft Defamation Bill, First Report (n 1) 3.
101 The Government's Response to the Report of the Joint Committee on the Draft Defamation Bill (n 23) [66].
102 Ministry of Justice, Draft Defamation Bill Consultation (n 12) [3] 8.
103 Ames (n 3) [50], [101]; Lachaux (n 3) [66].
104 Lachaux (n 3) [66].
105 Ibid [64].
106 Ibid.
107 Theedom (n 2) [31] a.
108 Ibid [31] b.
109 Ibid [31] c.
110 Ibid [31] g.
111 Ibid [31] d.
112 Alastair Mullis and Andrew Scott, ‘Worth the Candle? The Government's Draft Defamation Bill’ (2011) 3 Journal of Media Law 1, 17.
113 One question is when exactly reputational harm will be considered to be serious enough to pass the threshold of seriousness engaging article 8 of the Convention and satisfying the section 1 requirement of serious harm. In Lachaux, section 1 was described as ‘a more exacting test than Jameel’: Lachaux (n 3) [156]. Yet, in Sobrinho the claim was struck out on Jameel grounds despite satisfying the section 1(1) requirement. Another question is what the cut-off date between past (‘has caused serious harm’) and future (‘is likely to cause serious harm’) will be. In Cooke, Bean J identified two possibilities: the date of issue of the claim form and the date of the trial (or of the trial of the preliminary issue of serious harm), each of which has received obiter support (for the former: Cooke (n 3) [32]; for the latter: Lachaux (n 3) [67]).