This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

Reputation must have been seriously harmed: distress is not enough for defamation claimants
Ramona Mehta & Natalie McEvoy
19 August 2014

Reputation must have been seriously harmed: distress is not enough for defamation claimants

Last week, judgment was handed down in Cooke and Anor v MGN, the first case in which the interpretation of the new Defamation Act 2013 (in force since 1 January 2014) has come before the courts. In the spotlight was the new requirement that to found a defamation claim, the offending publication must have caused, or be likely to cause, "serious harm" to the claimant. No serious harm, no defamation claim.

In this case, the Sunday Mirror published a front page and page 4 and 5 feature on landlords who receive rental payments from the residents of the street featured on the Channel 4 programme Benefits Street. The story on pages 1 and 4 centred around one named landlord "cashing in" on taxpayer's money, whose properties were alleged to be "damp and mouldy" and who consigned residents to "appalling conditions". On page 5 the story continued and another landlord was anonymously identified as a "wealthy dentist", though it was not alleged that his homes were substandard. Finally, in one paragraph on page 5, the article mentioned that three homes in the road were owned by the claimant (a Housing Association), whose CEO – whose name, age and salary were listed – lives in a large house in Stroud, Gloucestershire. Again, there was no suggestion that those properties were substandard.

The claimants – the Housing Association and its CEO – did not dispute the accuracy of the story, but they claimed that by putting them in a "rogue's gallery" of landlords, the paragraph referring to them in context is defamatory.

The Sunday Mirror published a page 2 apology the following Sunday which the judge regarded as sufficient to eradicate or minimise any unfavourable impression of the claimants created in the mind of the reasonable reader by the reference to them the previous week.

At the preliminary issue hearing, witness statements claiming that serious harm had been suffered were submitted by the CEO and by the Governance and Contracts Director and Company Secretary of the Housing Association. As they were not a body trading for profit, the Housing Association did not have to prove "serious financial loss", just serious harm. However, the claimants were unable to adduce evidence that any specific individual had as a result of reading the article thought less of them, or of any contracts lost as a consequence of the story.

Concluding that there was no specific evidence that the article had caused serious harm and that such serious harm cannot be inferred, the judge held that the claimants had failed to show that it is more likely than not to cause serious harm to their reputations in the future. Without satisfying the serious harm hurdle, the defamation claim could not proceed.

Some clarity was given on elements of the serious harm test. The judge confirmed that the date from which one looks backwards to see whether serious harm has been caused, or forwards to see whether it is likely to be caused, is the date on which the claim is issued. Furthermore, that "likely" serious harm will generally only be established where the court is satisfied that it is more probable than not that it will occur in the future. Furthermore, the judgment emphasised that a timely, prominent, sufficient apology is a factor weighing in the defendant's favour in assessing whether the harm suffered by the claimant can be evaluated as "serious".

The judge agreed that under the new Act, the bar had been raised for a defamation claimant. He said that while some statements are so obviously likely to cause serious harm to a person's reputation that likelihood can be inferred (citing as examples, allegations of terrorism or paedophilia), others less serious may require hard evidence to satisfy the serious harm test, implying that in those circumstances, commissioning an opinion poll survey or producing a selection of comments from the blogosphere may be evidential exercises of assistance to the claimant.

It is important to reassure victims of defamation that every case turns on its own facts. The claimants in this case were not the focus of the offending publication and were concerned about contamination by association despite there being no specific allegations against them and having no evidence of consequential disadvantage. This judgment should not deter or intimidate claimants with a strong defamation claim.

For more information, please contact Ramona Mehta.