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How ‘Seriously’ was your Reputation Harmed?

About The Author

Emily Clements (Former Team Member)

Emily is a Durham University Law graduate due to start as a paralegal in the London Banking & Finance Department of a Silver Circle firm in October 2014, and currently has her targets set on qualifying as a solicitor.

Reputation management can be a real concern in such a media-dominated modern world, not only for celebrities, but for businesses and individuals simply trying to earn a living. A story plastered across a national newspaper defaming your character may not only affect you psychologically but could significantly damage your career and relationships. Fortunately, there is legislation in place to protect anyone who may find himself or herself in this position; less fortunately, the requisite legal test this person would need to satisfy is somewhat uncertain.

The Defamation Act

The Defamation Act 2013 (“the 2013 Act”) was enacted on 25 April 2013; the changes came into force on 1st January 2014. According to Parliament, the aim of this Bill was to ‘reform the law of defamation to ensure that a fair balance is struck between the right of freedom of expression and the protection of reputation’. This complex and unrelenting struggle between media freedom and the rights of individuals to both reputation and privacy, has been explored in detail by Chris Bridges, please see his article ‘A complicated relationship: The ECtHR, media, privacy & freedom of expression’ from earlier this year. It appears that, since the 2013 Act has come in to force, the balance has now slightly tipped in favour of free speech over rights to reputation, as will be explored below. 

One key change to the law can be found in s. 1(1) of the 2013 Act, which introduces a requirement of ‘serious harm’ to the claimant: 

A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

This has raised the bar for the level of harm that claimants must prove; previously the test was thought to be one of ‘substantial harm’. The expectation was that this increased threshold would stamp out some of the more trivial complaints and prevent unfair threats of libel claims against undeserving publishers. However, critically, the phrase ‘serious harm’ is not defined anywhere within the 2013 Act, leaving it to the courts to decide whether the ‘serious harm’ test is satisfied or not on the individual facts of each case. It appears, therefore, that the effect of this change in legislation is to be heavily reliant on the reaction of the judiciary and how they wish to interpret it. This summer, the one and only judgment to consider this issue so far was handed down in Cooke and another v MGN Ltd and another [2014] EWHC 2831 (QB). (For a summary of some of the other changes the 2013 Act introduced, see ‘Defamation Dragged into the 21st Century?’).

Cooke and another v MGN

The case concerned an article published in the Sunday Mirror entitled, “Millionaire Tory cashes in on TV Benefits Street”. The article focused on Paul Nischal, claiming that he makes £11,000 a year by renting out accommodation in appalling condition to the people on ‘Benefits Street’, also known as James Turner Street, Birmingham, which featured on the Channel 4 documentary series. The article described Mr Nischal as ‘making money from the misery of James Turner Street’ by receiving payment from the government through the housing benefits system.

However, Mr Nischal was not the claimant in this case, rather it was the housing association, Midland Heart Ltd and its CEO, Ruth Cooke, who were named only briefly in the article. It was stated that Midland Heart owned three of the houses on James Turner Street, that Ruth Cooke received a salary of £179,000 a year, and that she lived in a large house in Gloucestershire. Although the truth of these specific facts was not contested, it was the context in which they were given, directly after the descriptions of other disreputable landlords, which was argued to be defamatory. It should be noted that the Sunday Mirror did subsequently publish an apology for their reference to the claimants, explaining that it had been a mistake to include them in the article.

Hugh Tomlinson QC, appearing for the claimants, submitted (paragraph 12 of the judgment) that the article could be summarised as being about ‘slum landlords who are raking it in from squalid properties in ‘Benefits Street’’ and that the reasonable reader would infer that Midland Heart and Ms Cooke are included in this category of landlords. Indeed, the paragraph under which their names are included was headed ‘damp, broken boilers, leaking pipes, and peeling walls for £11,000 a year.’ 

On the other side, Mr Price for the defendants considered the ordinary notional reader to be able to distinguish between a private landlord like Mr Nischal and a housing association such as Midland Heart, which is a not for profit government organisation. It was argued in the alternative that if the notional reader is not taken as aware that Midland Heart is non-profit, all they would take from the article is the factual truth that Ms Cooke’s income is significantly higher than any of the residents on James Turner Street.

On this point HHJ Bean found in favour of the defendants, claiming that since the allegations of being a slum landlord were only directly attached to Mr Nischal and not Midland Heart, the reasonable reader would not form the proposed negative opinion of the claimants. Personally, I find difficulty with this decision since I consider the article, by the positioning of the information about Midland Heart, to be making a strong inference that the claimants are to considered in the same group as Mr Nischal.

The question of whether the claimant’s reputation was ‘seriously harmed’ was then examined. Ms Cooke’s evidence included that she had been contacted by three professional contacts about the content of the article, indicating that it was ‘awful’ that she was being associated with disreputable landlords. The ‘serious harm’ case was pleaded on the basis that Midland Heart are dependent on grants and contract income for which they bid on competitive tenders. Consequently, maintaining a trustworthy reputation is central to their success. It was argued that they might find it harder to receive public money as a result of their reference in such a negative article.

Despite disagreements between the parties regarding any negative effect of the article on the claimant, it was agreed that attempting to negotiate their way through the evidence of individual readers who may now have a negative impression of Midland Heart as landlords would be nearly impossible in practice. Mr Tomlinson thoroughly explored the evidential difficulties in trying to establish ‘actual’ or ‘likely’ harm to a person’s reputation; the very nature of a reputation is difficult to measure. On the other side, Mr Price (paragraph 42(d)) emphasised the lack of ‘tangible adverse consequences to the claimant.’

Whilst discussion around what the intended meaning of the contested statements in the article is of interest, it is the evidence of ‘serious harm’ which the law requires us to focus on. Concomitantly, finding this hard evidence was particularly difficult for the claimant, and appears likely to be difficult for most claimants in a similar position. However, HHJ Bean concluded that evidence of serious harm would not necessarily be required in every single case. He suggested that some statements could be so obviously likely to cause serious harm to an individual’s reputation that damage can be inferred. By way of example HHJ Bean used an accusation published in a national newspaper with a large circulation that an individual was either a terrorist or a paedophile. Whilst this appears to bea sensible exception, it was rightly not considered to be analogous to the case at hand.

Instead, the HHJ Bean decided against the claimants on the basis that there was a lack of evidence of serious harm having already been caused or likely to be caused in the future. Notably, he took great account of the newspaper’s published apology to the claimants, in addition to the fact that the original article was now more difficult to access online than the amended article which no longer included the names of the claimants.

Commentary

The judgment is notable, not only as the first case to apply the new 2013 Act, but as a demonstration of how the law has shifted in favour of the media. Under the old law the content in question would have been found to be defamatory.

On the other hand, some commentators consider the case notable only in regard to its disappointment. It was hoped the judgment may provide a valuable first step towards the interpretation of ‘serious harm’ since media lawyers have been eagerly anticipating further guidance on this point. Whilst we can adduce that the threshold has been raised, exactly how much it has been raised is up for debate. Further disappointment was felt due to the lack of exploration around what could be considered sufficiently hard evidence of harm. Counsel for the defence submitted that online comments could be adduced as hard evidence in less clear-cut cases that require such evidence. However as sensibly recognised by media barrister, Kirsten Sjovoll, these comments are inevitably going to be unrepresentative. Those who are motivated to make a comment probably have a particularly strong view, not necessarily shared by the silent majority. Furthermore, the anonymous nature of online comments could surely enable parties to manipulate the evidence to their own end.

As for the importance of the apology, it is clear from the conclusion in the judgment as detailed above that the HHJ Bean’s decision was influenced by its existence. 5RB chambers have noted that the apology was not negotiated or agreed with the claimants. This may be a point of interest for newspapers and publishers, since it could mean that a prompt apology could ‘remedy’ any potentially defamatory content. 

To conclude, the judgment demonstrates the higher threshold that claimants must now meet in order to win a claim under the 2013 Act. It also shows to an extent how the law here has become more media-friendly. However, the judgment leaves questions unanswered, and the uncertainty surrounding the meaning of ‘serious harm’ remains. The concern is that the lack of clear guidelines as to the meaning of ‘serious harm’, combined with the inherent obstacles in trying to adduce evidence of this harm or measure a person’s reputation, will make it disproportionately difficult for any claimant to win a case unless it falls within the extreme exception of, perhaps, paedophilia or terrorist accusations. As seen in this case with Midland Heart, proving that your reputation has been ‘seriously harmed’ is no easy task.

Further Reading

'The Defamation Act 2013' Taylor Wessing

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Tagged: Commercial Law, Defamation, Tort Law

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