As the new serious harm requirement begins to take shape, we are reminded that publication to even just a few people can provide a basis for a libel action.

Facts

Two internet entrepreneurs who were accused of being “spammers” have successfully defended an application to have their claims struck out, with a trial expected to take place later this year.

The Claimants, both online businessmen based in California, complain that the Spamhaus website – which collates information relating to companies that supposedly send out ‘spam’ emails and advertisements – contained information that was libellous of them in that it falsely alleged they were among the world’s most prolific spammers. They also claim damages and an injunction for misuse of private information and copyright infringement based on a photograph of one of the claimants that appeared on the site along with residential addresses of both claimants.

The Defendants applied to strike out the claims as an abuse of process, with summary judgement pleaded in the alternative, on the basis that, inter alia, the Claimants did not have a significant enough reputation in England and Wales to suffer any serious or substantial harm. In considering the application, the court was given another opportunity to interpret and give guidance on the serious harm test, which is set out in s.1 Defamation Act 2013 as follows:

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

Analysis and comment

In rejecting the Defendants’ application, Warby J considered the recent judgment of Bean J in Cooke v MGN, concurring that “it is no longer enough to establish a tendency to have a substantial impact and amount to a real and substantial tort; there is now no tort unless and until “serious harm to reputation” has either been caused or “is likely to” be caused by the publication.”

He went on to say that the definition of “serious harm” had been left open to interpretation by Parliament and that, in his judgement, the correct approach was to consider the same relevant factors as when assessing whether a tort is real and substantial for the purposes of Jameel v Dow Jones.

Warby J found that at trial the claimants may very well establish a meaning imputing “unlawful conduct in the course of business and, in the case of the full pleaded meaning, seriously unlawful, deceitful conduct over a period of years”, which, he decided, would be “inherently seriously harmful to reputation”. In clarifying the uncertainties surrounding what type of damage might generally qualify as serious harm, he adopted Bean J’s position that serious harm can be inferred without evidence of adverse reaction from readers. In Cooke, Bean J refused to accept the defendant’s submission that “tangible adverse consequences” would be required, and posited accusations of paedophilia and terrorism as examples that would clearly pass the threshold. However, these remarks were merely made obiter since the facts of Cooke did not necessitate a ruling on the matter. The issue therefore remained open for judicial interpretation and Warby J took steps towards clarifying the situation by noting that, while tangible evidence will be expected in certain circumstances, it is by no means a pre-requisite to bringing an action. Acknowledging the practical difficulties claimants can come up against in producing such tangible evidence, he stated (at [55]):

“[A]s practitioners in this field are well aware, it is generally impractical for a claimant to seek out witnesses to say that they read the words complained of and thought the worse of the claimant. I note from Cooke [42](f) that the defendant’s submissions in that case did not go so far as to say that this could never be done; rather, it was submitted that the court should be “wary” of attempts to rely on inference.”

The judge also dealt with the issue of how “likely” should be defined within s.1. He decided that he need not make a definitive ruling on the subject for the purposes of the immediate case but opined obiter that he would appropriate the approach taken in Cooke that “likely” can be taken to mean “more probable than not” unless – in accordance with Cream Holdings v Banerjee – a lower standard of likelihood may be required. This ambiguity may soon be clarified by the Supreme Court in their pending reserved judgement on OPO v MLA so it is perhaps unsurprising that Warby J declined to offer more than an indication of his stance on the matter.

Libel lawyers also received helpful guidance on how cases should henceforth proceed in light of the new legislation. In addition to clarifying that causation of serious harm begins at the date of publication, rather than the date of issue, Warby J declared:

“Claims should now be pleaded in terms reflecting the wording of s 1…, making clear which limb or limbs are relied on, and should set out any facts relied on in support of an allegation of actual or likely serious harm to reputation.”

Conclusion

The decision can be distinguished from Cooke – a case which ostensibly showed how much the bar to litigation has now been raised – in that, in that case, a bold and swift apology had been published, which mitigated the harm or likely harm to such an extent that Bean J surmised the statutory threshold had not been overcome. Certainly, the Ames decision appears to be of potential significance in terms of the interpretation of s.1’s interpretation and indeed should help to assuage worries that the effect of s.1 Defamation Act 2013 will be to prejudicially preclude scores of worthy claimants from bringing defamation claims.

You can read the full judgment here.

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