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What is Happening to Defamation Law?

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About The Author

Jessica O'Driscoll-Breen (Guest Contributor)

Jessica is a philosophy graduate from the University of Cambridge, where her focus was on political philosophy and aesthetics. She is a part-time BPTC student and runs a small tutoring company alongside her studies. Outside of this, she can usually be found at the cinema or a debate.

The only thing more frustrating than slanderers is those foolish enough to listen to them.

Criss Jami

One Brick Court, the leading defamation chambers, is to formally dissolve on 24 June 2019. The set, led by former solicitor general Lord Garnier QC, blames closure on [r]ecent unexpected departures and a retirement…’, which may have been aggravated by the current climate in defamation law.  According to Thomson Reuters, the number of defamation claims has dropped year on year since the introduction of the Defamation Act 2013 (DA 2013), which raised the bar for claimants in England and Wales. In the year ending 30 June 2017, 49 reported defamation claims made it to court, down from 58 the year before that, 63 in the year ending 30 June 2015 and 86 in the year ending 30 June 2014.

Before the introduction of the DA 2013 in January 2014, England was known as a ‘centre for libel tourism because it had some of the lowest thresholds for claimants bringing defamation claims.  For this reason, employers in the UK are reluctant to give bad references, as historically, it has been easy for disgruntled employees to bring a claim against employees for libel. Likewise, there was a ‘chilling effect’ on many forms of publication: the discouragement of the publication of material out of fear of being subject to defamation proceedings. This negatively affected material such as scientific publications and whistleblowing. The charity and writers’ association English PEN had a Libel Reform Campaign rightly criticising English libel laws for being unjust and not in the public interest before the DA 2013. Subsequent changes to the law (in the form of the DA 2013) have led to a drastic decrease in the number of libel claims, and the end of England’s reputation as an easy place in which to sue for defamation. The mechanics of this are discussed below.

Defamation – The law

For a statement to be defamatory, it must (i) identify the claimant (explicitly or otherwise), (ii) have a meaning that may cause people to adopt an adverse attitude towards the claimant, and (iii) be false. The person about whom a defamatory statement has been made may bring a claim in order to seek damages and/or an injunction to cease publication of the defamatory statements, or to publish an apology.

The defamation and libel laws in England and Wales before the DA 2013 were infamous for being strongly in the claimant’s favour, to the extent that they allowed many trivial claims to succeed. In an attempt to balance this, the DA 2013 has now added a ‘serious harm’ requirement for claimants who want to bring a defamation claim.

Common law

Before enactment of the DA 2013, two common law arguments were used by defendants attempting to have a defamation claim struck out: the Thornton threshold test and Jameel abuse.

The Thornton threshold test

The common law threshold for defamatory statements (a low bar to trivial claims) came from Thornton v Telegraph Media Group Ltd [2010], in which a statement was found to be defamatory if it had:

a likelihood or tendency to cause substantial adverse consequences for the claimant.

In his judgment, Tugendhat J said that there was a need for a threshold to ensure that the protection of reputation does not get undermined when, for example, ‘exhibitions of bad manners or discourtesy are placed on the same level as attacks on character, and are treated as actionable wrongs’. 

However, it is not a judge’s role to write new law, but to interpret and implement legislation approved by Parliament. While judges often, in effect, make new law by setting precedent, to maintain consistency, they are (rightly) reluctant to make controversial judgments, leaving major legal changes to Parliament. Tugendhat J felt obliged to introduce a new threshold in the wake of the Human Rights Act 1998, which would give greater consideration to the right to freedom of expression, per Article 10 of the European Convention on Human Rights (ECHR).

Tugendhat J was conscious to impose the lowest possible threshold (considering anything stronger to be within Parliament’s remit), and used the word ‘substantial’ for that reason. However, the threshold was not high enough and continued to allow trivial claims to proceed. The law of defamation’s main difficulty is in striking the balance between protecting free speech and protecting reputation; Thornton was an attempt to tip the balance further towards the centre, with defamation law having previously been strongly in favour of reputation, but it did not go far enough.

Jameel abuse

The decision in Jameel (Yousef) v Dow Jones & Co Inc [2005] also took Article 10 ECHR into consideration. ‘Jameel abuse’ has not been subsumed by the DA 2013 and is still arguable in court by defendants who wish to strike out a claim.  It applies where defamation proceedings are brought in one of the following three situations:

  1. In response to a very limited publication of defamatory statements (as in Jameel);
  2. After the claimant has already cleared their name by other means (as in Hays plc v Hartley [2010] and Cammish v Hughes [2012]); or
  3. Where the claimant had no reputation to protect in the first place (as in Williams v MGN Ltd [2009]).

In Jameel, a story was published in the online version of the Wall Street Journal which falsely linked Yousef Jameel to al-Qaida. The article was only accessed by five people in England and Wales. Proceedings were stayed on the basis that there had not been a ‘real and substantial tort’ within the jurisdiction. This was correctly decided in an effort to attain a balance between the freedom of expression and the protection of reputation. Infringing upon freedom of expression is only justified if there is legitimately a reputation that needs to be protected against false allegations, and the Jameel jurisdiction helps to ensure that this is the case.  However, Jameel did not go far enough: the threshold for claimants bringing defamation proceedings after Jameel was still too low, and London continued to be referred to as the ‘libel capital of the world’ for this reason.

The Defamation Act 2013

Section 1(1) of the DA 2013 states:

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

The Explanatory Notes to the DA 2013 state that Section 1(1) ‘raises the bar for bringing a claim so that only cases involving serious harm to the claimant’s reputation can be brought’.

Serious harm to reputation

The requirement for ‘serious harm’ raised the bar from the common law in two ways.

Firstly, the DA 2013 specifies that the harm must be ‘serious’ (not merely ‘substantial’, as the common law required).

Secondly, the Act specifically requires that the harm must be to reputation, whereas the common law test did not. For example, under the common law, a publication which caused serious distress would pass the ‘substantial adverse consequences’ Thornton test, but it would not pass the ‘serious harm to reputation’ test under the DA 2013. However, as outlined below, the interpretation of the DA 2013 seems to be that something like serious distress could be taken into account along with serious damage to reputation. In the recent case of Monroe v Hopkins [2017], the Daily Mail columnist Katie Hopkins sent tweets about journalist Jack Monroe, causing the latter ‘real and substantial distress’, along with serious harm to her reputation. This distress was considered by the judge in the decision to allow the claimant to succeed in her claim.

Likelihood to cause serious harm to reputation

‘Likelihood’, rather than the common law’s ‘likelihood or tendency’, is used in the DA 2013. The replacement of ‘tendency’ with ‘likelihood’ does not merely raise the bar for defining statements as defamatory: it means that the court looks at all of the surrounding circumstances of the publication when considering whether serious harm is likely to occur, not just at the words. This is a major departure from the common law.

The bar to trivial claims has been raised and lowered since the introduction of the DA 2013. Three main cases have affected the level of the bar: Cooke v MGN [2014], Ames v Spamhaus [2015], and Lachaux v Independent Print [2017].

  • Cooke v MGN

Cooke v MGN was the first case after the DA 2013 to look at the ‘serious harm’ threshold, and set the bar very high, as discussed previously by Emily Clement for Keep Calm Talk Law.

The claimants were the CEO of a private housing association and the housing association itself. They had been referred to in an article about landlords letting sub-standard properties to benefit-recipients. The article also stated the CEO’s salary and the area in which she lived. The publication in question would have been defamatory under the common law, but failed under the new threshold, indicating that the bar has indeed been raised since the DA 2013. The High Court held that the publication was not seriously harmful, mainly because the defendants had published an apology – even though it was published without the claimants’ consent or request – which, in Bean J’s opinion, avoided any serious harm being caused. It seems, however, that this set the bar too high, as discussed below.

  • Ames v Spamhaus

Ames v Spamhaus was the second case to consider the ‘serious harm’ threshold, and set the bar even higher than Cooke by holding that the legal presumption of damage in libel cases no longer applied.

The claimant was a bulk email marketing business based in the US, and the defendant was a not-for-profit organisation that named the claimant as an illegal spammer, at the top of their list of the world’s 10 worst spammers. The defendant applied for an order to strike out the claim, on the basis that the claimants were not likely to suffer serious harm to their reputation, particularly since there was minimal publication in the UK (i.e. it failed the Section 1(1) requirement and it was an instance of Jameel abuse). Warby J in the High Court rejected the defendants’ application to strike out.

This case was noted for being the first to deal with Section 1(1) together with Jameel. Arguably, it also set the bar to defamation claims too high; this is also discussed below.

  • Lachaux v Independent Print

In Lachaux, the Court of Appeal clarified a number of points from the previous two cases, and lowered the bar slightly – this has been explored by Connor Griffith for Keep Calm Talk Law.

The case involved the publication of false allegations that the claimant’s wife was a victim of domestic abuse, and that the claimant kidnapped their son. At first instance in the High Court, Warby J ruled in favour of the claimant, holding that serious harm to reputation had occurred, or was likely to occur. On appeal, the Court of Appeal found that Warby J had reached the correct conclusion, but that two points he made along the way with regards to the presumption of damage and consequential harm were incorrect.

The Law Society Gazette said this dealt a blow to the DA 2013s attempt to raise the bar to trivial defamation claims because it was held that the presumption of damage remained. Other critics of the decision said that the judges did not like Parliament’s intervention into the law of defamation, and prioritised their own views over the legislation. Adrienne Page QC was leading counsel for the respondent in Lachaux, and held the opposite view. She argued that the bar has definitely been raised, and gave the example of a claimant who claims that a defamatory comment implies that they are guilty of some misconduct but the words meant something less, for instance grounds to investigate. Publications such as that example will no longer be considered to be defamatory and there will be a ‘real, measurable difference to practice’.

It is clear that the bar remains raised compared with the position before the DA 2013: the change of wording discussed above (from ‘substantial’ to ‘serious’, and from ‘tendency’ to ‘likelihood’) has necessarily raised this threshold.

Evaluation: Common law v legislation

The reasons the Gazette and other critics had for suggesting that Lachaux lowered the bar to the same level as the common law are:

  • that the presumption of damage had returned, which makes it too easy for claimants; and
  • the distinction of reputational from consequential harm (linked to the presumption of damage) also aids trivial claims.

These two arguments are outlined below with an analysis of why they are wrong. It is submitted that the Lachaux judgment should be supported, particularly the third point from the Lachaux decision, concerning Jameel, also discussed below.

The presumption of damage and evidence

The common law included a presumption of damage which meant that if a court found that there had been a publication of defamatory words, then the law presumed that some damage to reputation had been caused. This meant that a claimant did not need to produce any evidence of damage to reputation in order to prove that the defendant was liable.

In Cooke, Bean J stated that evidence was needed in some cases to satisfy the serious harm test, but that in cases where the statements are so obviously likely to cause serious harm, then harm may be inferred. The extreme examples he cited (a publication stating that the claimant is a terrorist or paedophile), along with the fact that the statements complained of in Cooke failed to pass the ‘serious harm’ threshold, suggested that evidence will usually be needed, and the presumption of damage will only apply in extreme circumstances. The Cooke decision was relied on by media companies subsequently, setting the bar firmly high.

After Cooke, in Ames v Spamhaus, Warby J raised the bar even higher by explaining that his construction of Section 1(1) meant that there was no longer ever a legal presumption of damage in libel cases. Linked to this construction was the conclusion (discussed below) that the cause of action in libel cases was no longer at the moment of publication, but when the harm flowing from the publication came about. Warby J stated that a:

cause of action may lie inchoate until serious harm is caused or its future occurrence becomes probable.

This was overruled by Davis LJ in the Court of Appeal in the case of Lachaux. Had it not been overruled, the bar would have been raised too high, as it is often very difficult to provide positive evidence of harm to reputation; therefore many legitimate cases would have failed at the first hurdle and been struck out on that basis.

When Davis LJ overruled this, he discussed the ‘conceptual impenetrability’ of Section 1(1), referring specifically to the wording ‘has caused’, and the difference from Tugendhat J’s 'likelihood or tendency to cause substantial adverse consequences’ in Thornton. He acknowledged that Parliament had not intended to significantly change the common law, but to expand upon it, as mentioned in the Explanatory Notes. However, the requirement of actual proof of damage (as suggested by Warby J both in Ames v Spamhaus, and in Lachaux at the first instance) would be a change from the common law. Lachaux changed this and the legal presumption of damage remains in libel, lowering the bar slightly from the decisions in Cooke and Ames v Spamhaus.

However, this has not, as the Gazette suggested, dealt a blow to the Act’s attempt to raise the bar. A presumption of damage can be rebutted or challenged at trial, so the presumption of damage can be compatible with a raised threshold.

The difference between reputational harm and consequential harm: providing certainty

Bean J in Cooke interpreted the DA 2013 to mean that at the moment of publication, no harm has been caused, but that the harm occurs later. In not distinguishing between the actual harm to reputation and the consequential harm that flows from it, Bean J was mistaken. This led to issues in subsequent cases (for example Ames v Spamhaus) over when the establishment of the existence of serious harm should be judged. The common law prior to the DA 2013 recognised that harm to reputation happens when defamatory words are published to a third person. Davis LJ in Lachaux at the Court of Appeal emphasised the difference between this reputational harm and the consequential damage that flows from it, finding that the harm should be judged on – and no later than – the publication to a third party of a defamatory statement.

This ensures that publications can no longer ‘drift in and out of actionability’, as Adrienne Page QC discussed. An example of this ‘drifting’ and why it is not desirable would be: a publication is not considered to be defamatory, and then a claimant has their tyres slashed so they can produce evidence of damage, making the statement defamatory; or on the other hand, a publication could be regarded as defamatory and then a widely-circulated apology stops the statement from being defamatory (as in Cooke).

These situations are undesirable because they create uncertainty; the response to a statement should not affect whether the statement itself is defamatory. This uncertainty is no longer the case after Lachaux, so now there can no longer be an inchoate cause of action waiting for some damage or evidence of likelihood of damage to make it actionable. Unlike what the Gazette and other critics said, this point has both lowered and raised the bar for claimants in different situations: raised the bar in situations like the tyre-slashing example, which would no longer have a cause of action; lowered the bar in the apology situation, which would now have a cause of action.

The relationship between Jameel and Section 1(1)

Warby J in Ames v Spamhaus noted that the meaning of ‘serious’ in Section 1(1) was not defined in the statute, so it was left for the courts to define and apply. He held that when deciding if a publication’s harm was serious or not, the factors to be taken into account would be similar to those considered when establishing if the Jameel ‘real and substantial’ test was passed or not. These factors included the nature of the statement, how serious its meaning was, the extent of publication, who the publishers and publishees were, and the claimant’s existing reputation.  It was held that the serious harm test did not eliminate the Jameel jurisdiction, but introduced an additional threshold that needed to be overcome before looking at Jameel, raising the bar to trivial claims from the common law.

After this, the construction of Section 1(1) in Lachaux in the first instance was interpreted to mean that the Jameel abuse argument had been ‘wholly subsumed by the reformed law’. The Court of Appeal then disagreed and concluded that Jameel abuse is still a relevant argument where there is trivial damage to reputation, and also that Jameel abuse only comes into force if Section 1(1) has been satisfied and there is a cause of action. It will not be common, but a claim may have a good cause of action (satisfying the serious harm test), but still fall into the Jameel jurisdiction. Jameel does not look at whether or not a claim has a good cause of action, and so is separate from the serious harm threshold. In this respect, the Court of Appeal in Lachaux slightly raised the bar.

Conclusion

The bar to trivial defamation claims since the DA 2013 is higher. Before the Act, defendants could have had trivial claims struck out by one of two options:

  • argue Thornton: that the publication does not have the likelihood or tendency to cause substantial adverse consequences for the claimant; or
  • argue Jameel abuse.

Now, the second option remains available, but the first route has been made more difficult for claimants to overcome. Defendants may now use the easier argument to have a claim struck out: that there is no likelihood of serious harm to reputation, so no cause of action. This is a higher bar for claimants to get over, and will prevent many trivial claims from proceeding.

It is clear that Section 1(1) has raised the bar, as Parliament intended. As a result, there have been fewer defamation trials since the DA 2013, and cases like Cooke, which would have succeeded previously, have been struck out. Even if Lachaux may now have changed how Cooke would be decided today, the bar remains higher and many cases which would have succeeded pre-DA 2013 would now be struck out.

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Tagged: Defamation, Litigation, Tort Law

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