In a blog post earlier this year, we said potential claimants should be cautious when considering bringing a claim for defamation as it wasn’t yet clear how the Courts would interpret the need for ‘serious harm’ under the new Defamation Act.
To recap, the position under the Act is that in order to succeed in a claim for defamation, a claimant must show that the words complained about have caused or are likely to cause ‘serious harm’. In the case of a company, this is unlikely to be the case unless the company can show that the words have caused (or are likely to cause) ‘serious financial loss’.
There was uncertainty as to how the Courts would interpret the meaning of ‘serious harm’, and until recently there was a lack of guidance from the case law. However, in a recent case* the Judge said that Claimants in a claim for defamation will have to prove as a fact (on the balance of probabilities) that serious reputational harm has been caused or was likely to result from the defamatory statement. The Court is entitled to take into account all of the relevant circumstances, including evidence of what actually happened after publication of the statement. According to the Judge in this case, the result of this is that Claimants will now have to show proof of damage in order to succeed in a defamation claim.
It is therefore a higher threshold to meet if you want to bring a claim for defamation and it will be harder to do if you do not have evidence that ‘serious harm’ has been caused.
However, as set out in our previous blog, there are other options available to you where false statements have been made which have damaged your reputation or the reputation of your business. Even if you don’t have evidence that the statement has caused ‘serious harm’ or ‘serious financial loss’, these statements must be addressed and if you find yourself in this situation then it is worth taking legal advice on whether or not you have a claim for malicious falsehood, misrepresentation or even breach of contract.
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*Lachaux v Independent Print