Proposed reform of Ireland's defamation law can be seen in action in England and Wales 

The Oireachtas justice committee wants a ‘serious harm test’ applied to defamation claims. Here, SAYRA TEKIN describes the effect the test has had since it was introduced in Britain

Tory MP Andrew Mitchell unsuccessfully sued 'The Sun' after it reported he'd called Downing Street police officers 'fucking plebs'. The costs of £3m (€3.4m) in the case illustrate the potential power of SLAPPs to dissuade the media from reporting things they know to be true. File picture: David Jones/PA

Defamation law is a critical part of the complex legal and regulatory environment which journalists must navigate when doing their job of holding power to account on behalf of the public.

Defamation has, rightly, been described by McNae’s Essential Law for Journalists — the definitive British media law guide for journalists — as “one of the greatest legal dangers for anyone who earns a living with words and images”. In a democratic society, it is therefore essential that the law strikes the right balance between the individual’s right to a reputation and the right to freedom of speech.

Background

Before the passage of the Defamation Act 2013, applicable only to England and Wales, English defamation law was branded as “out of date, costly and over-complicated” by legislators.

It made England and Wales into a choice destination for “libel tourism” by the deep-pocketed and powerful due to the ease with which spurious claims could be brought, creating a serious threat to the public’s right to receive information. The need for action was clear, creating a consensus across the political spectrum in Westminster that reform of the libel regime was urgently required. 

The ‘serious harm test’ was introduced in England and Wales to prevent the courts from being inundated with trivial complaints, and also to prevent the rich and powerful from intimidating news publishers to evade scrutiny. Stock picture

Then justice secretary Kenneth Clarke articulated the problem during a House of Commons debate.

He said: “I share the mounting concern of recent years that our defamation laws are becoming out of date, costly, and over-complicated, and that they are at risk of damaging freedom of speech without affording proper protection.

“No one can be satisfied with a situation where the threat of lengthy and costly proceedings has sometimes been used to frustrate robust scientific and academic debate, to impede responsible investigative journalism and to undermine the good work undertaken by many non-governmental organisations.

“Our intention is to correct the worst excesses of our current system in which, particularly for the powerful and wealthy, the law makes it rather too easy to menace responsible publishers with libel proceedings.”

Serious harm

A critical part of the reform introduced by the Defamation Act 2013 in England and Wales focused on the required threshold a claimant would need to reach to demonstrate that their reputation had suffered as result of publication — that of “serious harm”.

To bring a claim under the then new regime, a claimant would need to prove that the material: (i) has been published to a third person — a formality in a case against the media; (ii) is capable of bearing the defamatory meaning complained of; (iii) reasonably identifies them (even if not by name); and, most importantly, (iv) that their reputation has suffered (or is likely to suffer) “serious harm”.

Section 1 of the Defamation Act 2013 introduced the threshold that a statement is not defamatory unless its publication has caused (or is likely to cause) “serious harm” to the reputation of the claimant.

Westminster made its intention clear. This test “raises the bar for bringing a claim so that only cases involving serious harm to the claimant’s reputation can be brought”. Though the act does not prescribe what constitutes “serious harm” to an individual’s reputation, in 2019, the UK Supreme Court unanimously confirmed that this test: (i) imposed a new, and higher, threshold than claimants had to previously meet, thus removing the presumption of damage to reputation as a result of the inherent meaning of the words used; and (ii) that, instead, this threshold required serious harm to be determined by reference to the actual facts about its impact in the particular circumstances.

Sayra Tekin is the legal, policy, and regulatory affairs director with the News Media Association. 

This development has meant that, in circumstances where the meaning and context of a publication are not such that serious harm might be inferred, a claim could be struck out. The test means that claimants need to gather the necessary evidence to overcome this enhanced threshold.

This is an important requirement, particularly because claimants do not need to prove that the publication is false. If a statement is defamatory, the court’s starting point is to assume it is false and the burden is on the publisher to prove its truth, or rely upon another defence.

Without the need to show serious harm in the actual circumstances of the publication, publishers would have to defend every single word and image, leading to a deluge of vexatious complaints. The natural consequence of this would be for publishers to shy away from scrutiny, investigation, and controversy — essentially, a grave chilling effect on public interest journalism or, indeed, comment or scrutiny of any kind.

Why is it important?

The purpose of the new serious harm threshold in England and Wales was to protect free speech and prevent the courts being inundated with complaints of a trivial nature, for example, where the publication was of limited extent or was just tittle-tattle.

Even prior to the Defamation Act 2013, courts in England and Wales recognised that a “threshold of seriousness” should be reached before freedom of speech would be curbed in favour of the right to reputation. 

For example, in  Ecclestone v Telegraph Media Group, the court struck out a case where an item in a newspaper diary column quoted the claimant as saying, “I am not a veggie and I don’t have much time for people like the McCartneys and Annie Lennox”. 

The words were not capable of lowering the claimant in the estimation of “right-thinking” members of society generally, and thus the claimant’s belief that quote was falsified was immaterial.

The Defamation Act 2013 sought to codify and strengthen this area of jurisprudence, formulating the “serious harm” test to ensure trivial complaints did not stifle the public’s right to information. More recently, a defamation claim brought by businessman Mohamed Amersi, who has donated more than £500,000 (€574,000) to the Conservative Party, against former MP Charlotte Leslie, was dismissed for being “fanciful and devoid of reality”. 

Mr Amersi claimed that his reputation had been seriously harmed when documents that contained defamatory allegations against him were shared with influential individuals.

There was a “strong” suggestion that “the claimant has treated this libel action as providing him with an opportunity also to seek to embarrass (and possibly to punish) the Conservative Party for, as he perceives it, having wronged him”.

Even before the 2013 reforms, English courts recognised a 'threshold of seriousness', throwing out Petra Ecclestone's 2009 claim against 'The Daily Telegraph'. File picture: Luca Bruno/AP

In recent years, the proliferation of strategic lawsuits against public participation (Slapps) has highlighted the importance of the serious harm test.

Slapps are lawsuits usually started by the rich and powerful to harass, intimidate, and financially and psychologically exhaust the publisher in order to evade scrutiny. Pressure can be exerted via the vast costs in defending an action. 

For example, The Sun reported in 2016 that Andrew Mitchell MP — who had unsuccessfully sued the newspaper because of an article which said he had called Downing Street police officers “fucking plebs” — had to pay The Sun £3m (€3.4m) in costs. 

These types of costs would be prohibitive for individuals or small publishers to defend and, as a result, the default position would be to retract, apologise, and be silenced, even if the publisher was certain that the story was true. 

Without the serious harm test, journalists, publishers, and even a social post would be all the more vulnerable to being silenced by the rich and powerful, irrespective of truth, before a defence can even be mounted.

• Sayra Tekin is legal, policy, and regulatory affairs director with the News Media Association, the representative body for national, regional and local news media organisations in Britain.