Difficult choice

When bringing a claim for defamation, a Claimant now has to show that the defamatory statement has caused (or is likely to cause) ’serious harm’ to its reputation, as per the Defamation Act (the Act) which came into force in January 2014. If the Claimant is a company, the Act says that it will be unlikely to have been caused serious harm unless the defamatory statement has caused or is likely to cause ‘serious financial loss’.

So far, there has been little guidance from the Courts about what will be seen as ‘serious harm’ or ‘serious financial loss’. So far there has only been one case on this point [1].

Details

In this case the Judge said that unless the statement is so obviously likely to cause serious harm (such as allegations of terrorism or paedophilia), Claimants will have to show evidence of serious harm or serious financial loss. In addition, the Judge said that apologies in defamation cases will now carry significant weight, and where an apology eradicates or minimises any damage to reputation or unfavourable impression, it is unlikely that the serious harm threshold will be met.

There was little discussion in this case about the meaning of the phrase ‘serious harm’, and so the meaning remains somewhat unclear. Since this case there have been no further reported cases on this point and a year and a half after the Act came into force, we are still waiting for further guidance from the Courts. Until more reported cases come through it will remain difficult to judge what the Court will see as ‘serious harm’. What is clear is that at the moment, unless you have evidence that serious harm or serious financial loss has been suffered, you should be wary of bringing a claim for defamation.

So, is there nothing I can do?

False statements which have damaged your reputation or the reputation of your business must be addressed. If you find yourself in this situation but you don’t have evidence that it has caused serious harm or serious financial loss, you may still be able to bring other claims such as malicious falsehood, misrepresentation or even breach of contract, so it’s always worth taking legal advice.

For more information, email blogs@gateleyplc.com.

[1] Cooke v MGN Limited


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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.