The Supreme Court's decision in Lachaux v Independent Print [2019] UKSC 27 delivers long-awaited clarification of the "serious harm" threshold contained within section 1 of Defamation Act 2013.

Section 1 of the Defamation Act 2013 provides:

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

(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

In the Supreme Court's judgment, before a statement can be regarded as defamatory, the statement complained of must not only be inherently injurious to the claimant's reputation but it must also be shown to produce serious harm in fact: this was also the view of Warby J at first instance.

In support of its conclusion, the Supreme Court gave four main reasons:

• The intention behind the enactment of the Defamation Act 2013 was to "amend the law of defamation". Section 1 must, therefore, not only have been enacted to raise the common law threshold of seriousness, but also to require its application to be determined by reference to "actual facts about the impact of the statement complained of and not just to the meaning of the words" [12].
• The reference to "has caused" within section 1 refers to "some historic harm, which can be shown to have occurred". This is a proposition of fact which can only be established by reference to the actual impact of publication of the statement on the claimant's reputation. In contrast, the reference to "is likely to cause" refers to "probable future harm" [14].
• It is necessary for section 1(1) to be read consistently alongside section 1(2), which calls for "an investigation of the actual impact of the statement" [15].
• If, as the Court of Appeal held, serious harm could only be demonstrated by reference to the inherent tendency of the words, it would be difficult to see any substantial change to the law of defamation said to be envisaged by the enactment of the Defamation Act 2013 [16]. 

At first instance, Warby J based his finding of serious harm on: (i) the scale of the publications; (ii) the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew the claimant; and (iii) the gravity of the meaning attributed to the statements complained of. The Judge's finding was therefore based on a combination of factors, including: (i) the meaning of the words; (ii) the situation of the claimant, (iii) the circumstances of publication; and (iv) inherent probabilities. The Supreme Court considered that there was no reason why inferences of fact as to the seriousness of the harm done to a claimant’s reputation should not be drawn from considerations of this kind [21].

Following the Supreme Court's decision, claimants will now bear an evidential burden of proving actual harm to reputation, and moreover, that such harm was, in fact, serious. Claimants will, however, derive some comfort from the Court's ability to draw inferences of fact as to the seriousness of the harm from the circumstances of the publication. Post-Lachaux, it is likely that the Court will afford much more scrutiny to the level of harm suffered as a result of defamatory publications ensuring that any harm suffered does, in fact, meet the serious harm threshold contained in section 1(1) of the Defamation Act 2013.

Daniel Bishop