Commencing a defamation claim can be a complex legal battleground, and understanding the requirements to assess the strengths and weaknesses of a potential claim is vital.
What is Defamatory?
Courts have established various tests to determine whether a statement is defamatory at common law. The imputation conveyed by the statement must discredit the claimant; or cause the claimant to be shunned or avoided; or expose the claimant to hatred, contempt or ridicule; or lower the claimant in the estimation of right-thinking members of society generally.
Defamation Act 2013:
Section 1 of the Defamation Act 2013 established a threshold of seriousness which must be considered in relation to whether the statement is defamatory. A statement is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant.
The Supreme Court:
The Supreme Court has ruled on the serious harm requirement and has held that a statement which would have previously been considered defamatory due to its inherent tendency to cause harm, is no longer defamatory unless it has, or is likely to cause, serious harm.
The serious harm test requires its application to be determined by reference to the actual facts about its impact, and not just the meaning of the words. This is a matter of fact established with reference to its impact on the readers, combined with the inherent tendency of the words.
The statement must now meet the common law requirement of defamatory, and the claimant must prove that the publication has caused, or is likely to cause serious harm to their reputation.
However, the Supreme Court has held that the gravity of a statement and the scale of publication can result in the claimant not being required to produce evidence from those who have read the statement about its impact on them. This is based on a combination of the meaning of the words, the situation of the claimant, the circumstance of publication and the inherent probabilities. Therefore, in some circumstances, serious harm can be inferred.
Case Examples Where Serious Harm Has Been Inferred:
- Slanderous threat to kill.
- A Tweet which alleged the claimant had been involved in the sexual abuse of children.
- A text which alleged that the claimant had committed a serious sexual assault, involving non-consensual penetration.
Best Practice – Evidence of Serious Harm:
Although serious harm can be inferred, it is best practice for the claimant to adduce evidence in support where they can.
Such evidence which is relevant to serious harm is the scale of publication. However, several decisions have stated that serious harm is not simply a numbers game. Although, where publication is in the mass media, or there is evidence of publication to a large number of people, the natural inference will be that serious harm to reputation has been caused, or is likely to be caused. In cases where publication is to a small number of people, serious harm will be harder to prove. In such cases, the identity and characteristics of the readership will be significantly important. “A significant factor is whether the allegation about the claimant ‘sticks’ in the minds of the readers.”
Expert Legal Assistance from Lawdit Solicitors:
At Lawdit Solicitors, we specialise in defamation law. If you are facing a potential defamation claim, whether as a claimant or defendant, our expert team is ready to provide the guidance and representation you need.
