KB-2022-003483 - [2025] EWHC 1912 (KB)

Section 1(1) of the 2013 Act 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”.

In Riley v Sivier [2022] EWHC 2891 (KB); [2023] EMLR 6 (“Riley”) at para 103, Steyn J cited her earlier summary of the relevant principles at para 51 in Banks v Cadwalladr [2022] EWHC 1417 (QB); [2022] EMLR 21 (“Banks”). (The Court of Appeal subsequently allowed part of the appeal in Banks, [2023] EWCA Civ 219, but did not call into question the accuracy of this summary.) The summary refers to Lachaux v Independent Print Ltd [2019] UKSC 27; [2020] AC 612 (“Lachaux”); and Turley v Unite the Union and Stephen Walker [2019] EWHC 3547 (QB) (“Turley”). As relevant, Steyn J said:

“i)

The protection of reputation is the primary function of the law of defamation and section 1 is concerned with harm to the reputation of the claimant, being harm of the kind represented by general damage, rather than special damage: Lachaux, Lord Sumption JSC (with whom all members of the court agreed), [15] and [19].

ii)

Section 1 imposes a higher threshold of seriousness than the common law rules ‘which were seen unduly to favour the protection of reputation at the expense of freedom of expression’: Lachaux, Lord Sumption [1], [12]; Turley, Nicklin J, [107(i)]. The provision was intended to effect ‘a substantial change to the law of defamation’: Lachaux, Lord Sumption [16]. As Saini J emphasised in George v Cannell [2021] EWHC 2988 (QB); [2021] 4 WLR 145, [117], it is important not to lose sight of the statutory qualifier serious harm.

iii)

The court should assess whether the serious harm test is met in respect of each statement individually, not cumulatively: Sube v News Group Newspapers [2018] EWHC 1961 (QB); [2018] 1 WLR 5767, Warby J, [22].

iv)

There is no presumption of serious harm. A claimant must demonstrate as a fact that the publication of the statement he complains of has caused or is likely to cause harm to his reputation that is ‘serious’: Lachaux, Lord Sumption, [12]-[16], [21]; Turley, Nicklin J, [107(iv)].

v)

The propositions that (i) the publication ‘has caused’ serious harm to the claimant’s reputation and that (ii) it ‘is likely to’ cause such harm are each propositions of fact which necessarily call for an investigation of the actual impact of the statement. When determining whether a statement ‘has caused’ serious harm, the focus is on historic harm. What were the consequences for the claimant’s reputation, in terms of the actual impact on those to whom the statement was communicated? When determining whether a statement ‘is likely to’ cause serious harm, the focus is on the probable future harm. Lachaux, Lord Sumption, [14]-[15]; Turley, Nicklin J, [107(ii)-(iv)].

vi)

Whether a publication causes serious harm depends on the reactions of others, rather than the perception of the claimant: Economou v De Freitas [2016] EWHC 1853 (QB); [2017] EMLR 4, Warby J, [131]. The assessment of harm to the claimant’s reputation may take account of the impact of the publication on those who do not know the claimant, but might get to know him in the future: Lachaux, Lord Sumption, [25].

vii)

A claimant who has the burden of proving that a statement caused, or is likely to cause, serious harm to his reputation may do so by evidence directly going to prove such harm, or by inference from other facts. A claimant may produce evidence from those who watched, heard or read the statement complained of about its impact on him, but his case will not necessarily fail for want of such evidence: Lachaux, Lord Sumption, [21]; Turley, Nicklin J, [107(vi)]. The difficulties of obtaining such evidence from those in whose eyes the claimant’s reputation was damaged are obvious and well-recognised: Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB); [2016] EMLR 12, Dingemans J, [48]; Economou v De Freitas [2018] EWCA Civ 2591; [2019] EMLR 7, Sharp LJ (with whom all members of the court agreed), [28] and [31]; Turley, Nicklin J, [109(ii)] ...

viii)

Sometimes inference may be enough, but it cannot always be so. The evidence may or may not justify an inference of serious harm. Inferences of fact as to the seriousness of harm done to a claimant’s reputation may be drawn from the evidence as a whole, including the meaning of the words, the scale and circumstances of the publication, the claimant’s situation and the inherent probabilities: Lachaux, Lord Sumption, [21]; Turley, Nicklin J, [107(vi)-(vii)] and [108] ...

ix)

If it is shown that the claimant already had a bad reputation in the relevant sector of his life, that will reduce the harm: see, albeit in the context of assessment of damages: Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB); [2022] EMLR 2, Nicklin J, [209]; and Lachaux, Lord Sumption, [16] (and see the recognition that assessment of whether the serious harm test is met and assessment of the measure of general damages ‘raise a similar question of causation’: Lachaux, Lord Sumption, [24]. The evidence that is admissible is limited to evidence of general bad reputation in the sector: Gatley on Libel and Slander, 13^th ed., 34.081-34.091. Rumours are not admissible, Umeyor v Innocent Ibe [2016] EWHC 862 (QB), Warby J, [78].

x)

Evidence of damage to the claimant’s reputation done by earlier publications of the same matter is legally irrelevant to the question whether serious harm was caused, or is likely to be caused, by the publication complained of: Lachaux, Lord Sumption, [24] (accepting that Warby J was entitled to apply the Dingle rule in applying s.1 of the 2013 Act). However, in circumstances where a claimant ‘points to some hostile remark or other adverse event in his life as evidence of harm to reputation caused by the publication complained of, and there are other possible causes of the remark or event, in the form of other publications to the same or similar effect’, the Dingle rule has no bearing in determining causation: Economou v De Freitas, Warby J, [19].

xi)

The court should not ‘consider the issue of serious harm in blinkers’. Directly relevant background context (see Burstein v Times Newspapers [2001] 1 WLR 579, May LJ, [47]) may be relevant to the assessment of whether the serious harm test is met: Umeyor v Innocent Ibe, Warby J, [77]-[78].

xii)

In general, a libel has greater potential to cause harm if it is published to the world at large and if it has been published repeatedly, than if it has been published to a single person on a single occasion: Cairns v Modi [2012] EWCA Civ 1382; [2013] 1 WLR 1015, Lord Judge CJ, [24]. But assessment of harm to reputation is not a ‘numbers game’: ‘one well-directed arrow [may] hit the bull’s eye of reputation’ and cause more damage than indiscriminate firing: King v Grundon [2012] EWHC 2719 (QB) [40], Sharp J. Very serious harm to reputation can be caused by publication to a relatively small number of publishees: Sobrinho [47]; Dhir v Saddler [2017] EWHC 3155 (QB) [55(i)]; Monir v Wood [2018] EWHC 3525 (QB) [196]; Turley, Nicklin J, [109(iii)]. Moreover, in an appropriate case, a claimant ‘can also rely upon the likely ‘percolation’ or ‘grapevine effect’ of defamatory publications, which has been ‘immeasurably enhanced’ by social media and modern methods of electronic communication: Cairns v Modi, Lord Judge CJ, [26] and Slipper v British Broadcasting Corporation [1991] 1 QB 283, Bingham LJ at 300’: Turley, Nicklin J, [109(i)].”