The Supreme Court held that section 1 of the Defamation Act 2013 requires a claimant to show, as a matter of fact, that a publication has caused or is likely to cause serious harm to reputation, rather than relying only on the words’ inherent tendency to injure. In Bruno Lachaux’s libel actions over newspaper allegations about his conduct in UAE divorce and custody proceedings, the publishers’ appeals were dismissed and the finding of serious harm was upheld.
Newspapers published allegations about Mr Lachaux during a family dispute. He sued the publishers in England. After the courts had determined the meanings of the articles, a preliminary hearing considered whether their publication had caused serious harm to his reputation.
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The preliminary issue was about the impact of the allegations on readers. It did not decide whether the allegations were true.
Section 1 and the rival constructions
Section 1(1) provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the claimant’s reputation. Section 1(2) provides that harm to the reputation of a profit-trading body is not serious harm unless it has caused or is likely to cause serious financial loss.
At common law, libel is actionable without proof of special damage. Injury to reputation is presumed from the inherently injurious tendency of the words, and that presumption is irrebuttable. Jameel (Yousef) v Dow Jones & Co Inc and Thornton v Telegraph Media Group Ltd had added low thresholds of seriousness, one procedural and one substantive. Mr Lachaux argued that section 1 left the presumption intact and merely required the words to have a tendency to cause serious rather than some harm. The publishers argued that serious harm had to be shown in fact, by evidence where it was not self-evident. Warby J accepted the publishers’ construction of the law but found serious harm on the facts. The Court of Appeal preferred Mr Lachaux’s construction, while upholding the factual finding.
Why actual impact must be shown
Lord Sumption, with whom Lord Kerr, Lord Wilson, Lord Hodge and Lord Briggs agreed, held that section 1 both raises the threshold above that recognised in Jameel and Thornton and requires the threshold to be applied by reference to the actual facts about impact, not merely the meaning of the words. Parliament is taken to have known the existing law. The Act was intended to amend it, but only to the extent that necessarily follows from the new serious-harm condition.
The words “has caused” refer to historic harm shown actually to have occurred, depending on both the tendency of the words and their impact on those to whom they were communicated. “Likely to cause” naturally means probable future harm and is treated on the same footing, not as a synonym for inherent tendency and not as a provision aimed only at pre-publication injunctions. Section 1(2) confirms this reading: whether a statement has caused serious financial loss, and whether harm is likely to do so, cannot be answered from the words alone.
If seriousness depended only on inherent tendency, the Act would have made little substantial change. Before the Act, harm below the level of serious harm could found liability precisely because damage was presumed from the words and might differ from any damage established in fact. Limited publication, disbelief, or the absence of an existing reputation might mitigate damages, but section 1 was intended to make such matters part of the test of whether a statement is defamatory.
The construction does not postpone accrual of the cause of action for the purposes of section 8 and the one-year limitation period. For a statement actionable per se, the protected interest is reputation and the cause of action is complete on communication to a person other than the claimant; later events are evidence of the seriousness of the impact. It also does not abolish the remaining categories of slander actionable per se. Section 14 deals separately with two abolished categories, while section 1 concerns harm to reputation rather than special damage in the sense of pecuniary loss to other interests.
The Court of Appeal’s analysis gave little effect to the statutory language and was internally contradictory. Davis LJ treated seriousness as depending on inherent tendency, but then treated the result as a rebuttable inference of fact. If the irrebuttable common law presumption survived, there would be no scope for evidence of actual impact. Warby J’s analysis was coherent and correct.
The finding of serious harm
Mr Lachaux therefore had to demonstrate as a fact that the harm was serious. Warby J heard evidence from Mr Lachaux and other witnesses and received agreed figures for print runs, estimated readership and online use. He based his finding on the scale of the publications, the fact that the statements had reached at least one identifiable person in the United Kingdom who knew Mr Lachaux, the likelihood that they had reached or would reach others who knew or would know him, and the gravity of the meanings found by Sir David Eady. Direct evidence from readers was not essential. Inferences could properly be drawn from the meaning of the words, Mr Lachaux’s situation, the circumstances of publication and the inherent probabilities. The Court of Appeal made a concurrent assessment of those facts.
The publishers’ suggested errors of principle were rejected. The repetition rule governs the meaning of a report of someone else’s allegation and the availability of a truth defence; nothing in the 2013 Act abolishes or limits it. The Dingle rule treats damage done by earlier publications of the same matter as irrelevant to the damage done by the publication complained of. Section 1 concerns the threshold of harm rather than the measure of general damages, but both involve a similar question of causation, and the judge was entitled to apply the rule. There was also no reason to exclude harm in the eyes of people who did not know Mr Lachaux when they read the articles but might come to know him later. His reputation was harmed at publication even if a reader then knew nothing about him beyond what the article said.
Verdict: The Court unanimously dismissed the publishers’ appeals. Mr Lachaux had established serious reputational harm on the evidence. The judge could draw that inference from the circumstances of publication without calling every reader who thought less of him.
Source: Lachaux v Independent Print Ltd and another [2019] UKSC 27
