Defamation and the “serious harm” test – guidance from the High Court

However, the Act failed to define “serious harm” which has led to some uncertainty as to the threshold a Claimant must reach to prove that a statement is defamatory.

The Law

Under Section 1(1) of the Act, a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the Claimant.

In addition, if the Claimant is a body that trades for profit, a statement is not defamatory unless its publication has caused or is likely to cause the body serious financial loss.

The Case

In what is believed to be the first case to address the issue of “serious harm”, the High Court in the matter of Ruth Cooke and Midland Heart – v – MGN Limited Trinity Mirror Midlands Limited has provided much needed guidance.

The case involved an article that was published in the Sunday Mirror following the broadcasting of Benefits Street on Channel 4, a documentary that focused on the lives of residents in Birmingham who were dependant on social security benefits. The programme attracted great attention and contributed to a widespread national debate about benefits.

The Claimants argued that the one paragraph contained within the article, which referred to the First Claimant’s salary and the fact that the second Claimant owned property on the street in questions, was, when read in context, defamatory.

The Judgment – “Serious Harm”

The Judge (Mr Justice Bean) in considering the issue of the “serious harm” test commented that the Court should employ a broad assessment approach and that there were two important considerations, namely the seriousness of the allegations and the extent of the circulation of any libel.

He stated that it was not necessary in every case to satisfy the “serious harm” test as certain statements were so obviously likely to cause serious harm to a person’s reputation that the likelihood can be inferred.  The example given by the Judge was of a National newspaper with a large circulation accusing an individual of being a terrorist or a paedophile.

The Judge attached “significance” to the Defendant’s apology, insofar as it was sufficient to minimise or eradicate any unfavourable impression in the mind of any “hypothetical reasonable reader” who had read both the original article and the apology.

In conclusion the Judge decided there was no specific evidence that the article had caused serious harm to the Claimants’ reputations.  Further, he did not consider that the Claimants had shown that it was more likely than not to cause serious harm to their reputations in the future.

Our view

Whilst some uncertainty remains in respect of what a Claimant must prove to satisfy the “serious harm” test, the judgment is welcomed guidance on the matter and confirms the highly held view that the threshold is high.

The judgment also brings into clear focus the weight that will be given to apologies when considering whether a claimant has suffered serious harm.

Whilst it was inevitable that the example given by the Judge in respect of allegations of being a terrorist or paedophile would satisfy the “serious harm” test, it is the less extreme cases, such as this one, were clarity was and continues to be needed. Such clarity will only come as more and more cases go through the Courts.

If nothing else, this case should raise caution with potential Claimants who seek to pursue defamation claims without being able to evidence serious harm to their reputation.

Should you wish to discuss the implications of this case further, or wish to discuss how your organisation deals with potentially defamatory comments, please contact Cynyr Rhys on 0121 214 3619 or cynyr.rhys@anthonycollins.com.

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