Supreme Court of United Kingdom finds Defamation Act of 2013 places heightened burden on those bringing claims for defamation, removing presumption of harm and requiring actual evidence of “serious harm” to claimant’s reputation.
Bruno Lachaux, a French aerospace engineer living in the United Arab Emirates with his British wife, brought several lawsuits against British newspapers, including the Independent and the Evening Standard, based on their coverage of his acrimonious divorce. Mr. Lachaux claimed that statements in the papers—that he had physically abused his wife, hidden his son’s passport to prevent his wife from leaving the UAE with his son, “callously and without justification” deprived her of custody of her son and falsely accused her of abducting their son—were defamatory.
Mr. Lachaux brought his claims in late 2014, rendering them subject to The Defamation Act of 2013 and turning on the interpretation of the new law. . Parliament had passed the Defamation Act in an effort to modify the common law rules, which were “seen unduly to favour the protection of reputation at the expense of freedom of expression,” and which had caused an influx of litigation in the U.K. from “persons resident outside the United Kingdom with only a very limited reputation in the United Kingdom.” These suits often resulted in substantial damages. In an effort to stem the tide of litigation, Section I of the Defamation 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.”
With respect to Mr. Lachaux’s claims, the trial court and Court of Appeals applied different analyses, but ultimately concluded that the newspapers were liable for defamation under the standards set forth in the Defamation Act. On appeal by the newspapers, the Supreme Court adopted a stance similar to that of the trial court. Examining the history of defamation law in the U.K., the Supreme Court noted that libel was historically actionable per se, meaning that there was an irrebuttable presumption of harm if the words at issue were of an inherently injurious character based on the perception of the “ordinary reasonable reader.” In the early 2000s, two seminal cases added an additional requirement that the inherent tendency of the words must not merely cause damage to a reputation, but cause serious harm to it.
Mr. Lachaux argued that the Defamation Act merely codified this heightened burden placed on claimants before they were entitled to the presumption of harm. . The Supreme Court did not agree, concluding that Parliament passed the Defamation Act with the express intention of amending the common law of defamation. Were Mr. Lachaux’s interpretation to stand, the Defamation Act would have not changed the legal landscape at all. Instead, the Court determined that Section I’s language that a publication “has caused or is likely to cause harm” was a factual inquiry, requiring “an investigation of the actual impact of the statement.” As a result, claimants must now provide evidence of serious harm in order to prevail on claims for defamation.
Though the Court set forth this new standard, it ultimately deferred to the trial court’s holding that Mr. Lachaux had provided the necessary evidence of serious harm through testimony and documentation on the newspapers’ circulation. Accordingly, the newspapers remained liable for the statements made in their publications.
Summary prepared by Melanie Howard and Sarah Levitan Perry