Among the many changes made by the Defamation Act 2013 is the requirement that defamation claims are now required to meet a new threshold of seriousness.
This note reviews the existing caselaw in this area and looks at the case of Cooke and another v MGN (2104) which is the first case to consider this new statutory requirement.
Thornton v Telegraph Media Group
The claim in Thornton v Telegraph Media Group Ltd (2010) arose out of a review of the claimant’s book by Lynn Barber in the Daily Telegraph which accused her of giving “copy approval” to interviewees and that she had dishonestly claimed to have carried out an interview with the reviewer, Ms Barber, herself as part of the research for the book.
Considering the decision of the House of Lords in Sim v Stretch (1936), Justice Tugendhat found that “whatever definition of ‘defamatory’ is adopted, it must include a qualification or threshold of seriousness, so as to exclude trivial claims”. He held that this threshold should be that the publication in question must “substantially affect in an adverse manner the attitude of other people towards him, or have a tendency so to do”.
Jameel v Dow Jones – a “real and substantial tort”
It is also well established that the courts will strike out a claim on the basis that, even if it was successful, damages would be minimal and would be out of proportion to the costs and court time required.
The Court of Appeal held in Jameel (Yousef) v Dow Jones & Co Inc (2005) that whether the claim in question amounts to such an abuse of process comes down to whether a “real and substantial tort” has been committed in the jurisdiction. In that case, a very limited number of people had read the article in question and therefore since the damage caused was minimal, any vindication would also be minimal, and the costs of obtaining it would be disproportionate.
Serious Harm under the Defamation Act 2013
The Defamation Act 2013 sets out a significant new statutory threshold for determining whether a statement is defamatory. Section 1 provides that a statement is not defamatory unless its publication “has caused or is likely to cause serious harm to the reputation of the claimant”.
Subsection (2) further provides that 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.
The Explanatory Notes to the Act confirm that this section raises the bar for bringing a claim and in doing so builds upon the consideration given by the courts in the existing caselaw as to what is sufficient to establish that a statement is defamatory.
Cooke v MGN
On 13 August 2014, judgment was handed down by Mr Justice Bean in the case of Cooke and another v MGN (2104) which is the first case to examine the new requirement of serious harm under the Defamation Act 2013.
The first claimant, Ruth Cooke, was the chief executive of the second claimant, the housing association, Midland Heart Limited. In January 2014, the Sunday Mirror published an article entitled “Millionaire Tory Cashes in on TV Benefits Street” which focused on the alleged exploitation of low income tenants living on the street featured in Channel 4’s Benefits Street programme. Despite receiving assurances that it would not be mentioned, Midland Heart was identified in the article as one of the “slum landlords who are raking it in from squalid properties in ‘Benefits Street’”. Midland Heart is a not for profit charity and reinvests its money into its homes for the benefit of its customers. The newspaper claimed that this had been an honest mistake and published an apology the following Sunday. However, the apology was not agreed between the parties and was deemed to be insufficient. The Claimants therefore brought a claim in libel against MGN.
In considering submissions as to the extent to which the bar has been raised by section 1(1), the word “serious” was considered to be “an ordinary word in common usage”. It was also held to set a higher threshold than the requirement of “substantial harm” which was the wording which had been used in the original draft Bill.
The judge also held that in all but the most severe cases (of which he gave the example of a national newspaper with a large circulation wrongly accusing someone of being a terrorist or a paedophile) actual evidence would be required to prove that serious harm had indeed been caused.
Significant importance was attached to the apology published by the newspaper. The judge held that the apology was “sufficient to eradicate or at least minimise any unfavourable impression created by the original article in the mind of the hypothetical reasonable reader who read both”. Whilst, he added, this left a residual class people who had read the original article but not the apology, he found that “the apology is now far more accessible on internet searches than the original Article” and that "only somebody actively trying to find the unamended article may come across it”.
In the current case, both Ms Cooke and Midland Heart accepted that they had no evidence that the Article had caused serious harm to their reputations. As such serious harm could not be inferred in this case, the judge found that the Claimants had not satisfied the criteria of section 1 and found in favour of MGN. Permission was given to the Claimants to appeal the decision but they confirmed in October 2014 that they did not wish to pursue this matter to the Court of Appeal.
The purpose of section 1 appeared to be simply to reduce the number of so-called frivolous claims and, as a result, to reduce the workload of the court. Whilst the bar certainly seems to have been raised in this regard, Cooke also looks to have brought about a number of further issues which will be of particular interest to defendants.
The significance attached by the judge to the apology is potentially huge. It appears that in circumstances where a defendant publishes a satisfactory apology – even one where the wording is not agreed with the Claimants – it may have the effect of remedying a defamatory statement to the extent that any harm caused by the initial article will not be held to be sufficiently serious.
The question of what evidence will be sufficient to prove that serious harm has been or is likely to be caused remains unanswered for now.
The timing of the issuing of a claim also now appears to be key. Rather than damage being presumed from the moment of publication, the judge held that the date from which past harm has been caused or future harm is likely to be caused should be the date on which the claim is issued. This would suggest that a claimant could be better off waiting until closer to the end of the limitation period before issuing the claim as it may be easier to gather evidence which is demonstrative of such harm being caused.