Defamation / Reputation
Johnson v. Steele
Closed Mixed Outcome
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The United Kingdom Supreme Court ruled that claimants bringing defamation actions must prove serious harm to their reputation by actual facts, rather than just the inherent tendency of their words. A real estate developer brought the case in relation to newspaper articles published about his marriage and contentious divorce. The Court emphasized that the Defamation Act, 2013 developed the common law of defamation so as to modify the law which unduly protected the right to reputation over freedom of expression. Despite the raising of the bar to bring actions, the Court upheld the lower court rulings that the articles in question did reach the threshold for serious harm.
Bruno Lachaux, a French aerospace engineer, had lived with his British wife Afsana in the United Arab Emirates (UAE). Following the breakdown of the marriage in April 2011, he instituted divorce proceedings in the courts of the UAE and sought the custody of their son Louis. In March 2012 Afsana went into hiding in February 2013 with Louis, claiming that she would not receive a fair trial in the UAE courts. However, in August 2012, the UAE court awarded custody of Louis to his father. In February 2013, Lachaux initiated a criminal prosecution against Afsana for abduction and eventually took possession of Louis in October that year after discovering the whereabouts of his son.
In January and February 2014, various British newspapers published articles making allegations against Lachaux in respect of his conduct towards Afsana during the marriage and in the course of the divorce and custody proceedings. In December 2014, Lachaux brought libel actions against the Independent and the Evening Standard and in January 2015 against the i. The content of these articles mainly discussed Mr. Lachaux’s abusive and violent behaviour towards his wife during their marriage, his attempt at hiding Louis’s passport to prevent Afsana from removing Louis from the UAE, and his use of the UAE laws to deprive her of custody and contact with her son. The articles further mentioned how he callously and without justification took Louis out of her possession and then falsely accused her of abducting him.
Lachaux brought defamation proceedings against the newspapers in the UK High Court. In a meaning hearing, Judge Eady held that the Independent article had eight defamatory meanings and the article in the Evening Standard had twelve defamatory meanings. Judge Warby presided over the High Court hearing into the question of whether the articles had caused “serious harm.” Before Judge Warby, the newspapers argued that the articles were not defamatory because they did not meet the threshold of “seriousness” as set out in section of the Defamation Act, 2013 (Act). The High Court held that the articles did involve publication of defamatory statements which had caused or were likely to cause serious harm. The newspapers appealed to the Court of Appeal which upheld the High Court’s decision, finding that the articles had caused serious harm to Lachaux.
The newspapers then appealed to the Supreme Court.
Lord Sumption delivered the unanimous judgment of the Supreme Court. The central issue before the court was the interpretation of the harm requirement in the 2013 Defamation Act that “a statement was not to be regarded as defamatory unless it had caused or was likely to cause “serious harm” to the claimant’s reputation.” [para. 1]
Lachaux argued that the Defamation Act did not affect the common law presumption of general damage or the rule that the “cause of action is made out if the statement complained of is inherently injurious or … it has a “tendency” to injure the claimant’s reputation.” [para. 11]
The newspapers argued that the Act introduced an additional condition of serious harm to the requirement that the words must be inherently injurious.
The High Court had accepted the newspapers’ argument but the Court of Appeal preferred Lachaux’s understanding of the provision – although both accepted that there was serious harm to Lachaux.
The Court conducted a thorough analysis of the evolution of defamation law in the UK, including common law and the statutes of defamation in 1888, 1952, 1996 and 2013.
Under the common law, there is a distinction between defamation which is actionable per se, and defamation which is actionable only upon proof of special damage. The Court emphasized that “although sharing a common label, these are very different torts with distinct historical origins.” [para. 4] The gist of the tort in defamation actionable per se is “injury to the claimant’s reputation and the associated injury to his or her feelings.” [para. 4] This form included all libels as well as four categories of slander which became part of libel because of their “particular propensity to injure the reputation of the claimant.” [para. 4] These categories were words imputing criminal offences; words imputing certain contagious or infectious diseases; words tending to injure a person in his or her office, calling, trade, or profession; and words imputing unchastity to a woman. With reference to Broome v. Cassell & Co Ltd  AC 1027, the Court noted that in these cases general damages are awarded and that these damages are not merely compensatory but “serve to vindicate the claimant’s reputation” which puts the claimant in a stronger financial position than they were in before the defamation. [para. 4] In contrast, in respect of defamation which is not actionable per se, the gist of the tort is “wrongfully inflicted pecuniary loss” rather than injury to reputation. [para. 5] Here, injury to reputation is not presumed and so special damages of the pecuniary loss must be proved by the claimant.
With reference to Sim v. Stretch  2 All ER 1237, the Court provided a working definition of a defamatory statement as one in which “the words tend to lower the plaintiff in the estimation of right-thinking members of society generally.” [para. 6] It added that there are three rules that have followed this definition: the determination of the meaning of the statement is an objective exercise in which the court determines how a reasonable reader would understand the statement; in respect of defamation actionable per se the damage to the claimant’s reputation is presumed rather than proved; and that presumption is one of law and so irrebuttable. However, in two cases in the early 21st century the courts had added the additional requirement that the damage to reputation in a defamation actionable per se must pass “a minimum threshold of seriousness.” [para. 6] In Jameel (Yousef) v. Dow Jones & Co Inc  QB 946, the Court introduced a procedural threshold that damage must be more than minimal and that the operation of the threshold depends on the evidence of actual damage and not just on the inherently injurious character of the statement in question. In Thornton v. Telegraph Media Group Ltd  1 WLR 1985 the Court said in addition to the Jameel procedural threshold there was also a substantive threshold of seriousness that needed to be met, and defined a defamatory statement as one which “may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do.” [para. 9]
The 2013 Defamation Act (the Act) followed these two cases and introduced a requirement of “serious harm” into UK defamation law. Section 1 of the Defamation Act states: “(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant; (2) For the purposes of this section, harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.” The Court described this Act as seeking to “modify some of the common law system of regulations, which were observed to unduly balance the protection of reputation at the expense of freedom of expression” [para. 1], and that there had been criticism that before this Act people resident outside the UK (and so with only a limited reputation within the UK) were able to sue for defamation and obtain substantial damages.
In interpreting section 1 of the Act, the Court held that it not only raised the threshold of seriousness above the threshold set out in the Jameel and Thornton cases but that it also required that the determination of “serious harm” be “determined by reference to the actual facts about its impact and not just to the meaning of the words.” [para. 12] The Court noted that this provision therefore alters the common law meaning of defamation by introducing that threshold of seriousness to the common law presumption of damage to reputation. It stressed that this meant that the provision “necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it ‘has caused or is likely to cause’ harm which is ‘serious.’” [para. 14] The Court commented that this requires an assessment of the actual impact the allegedly defamatory statement had, as well as an analysis of the inherent tendency of the words.
The Court emphasized that section 1(1) must be read with section 1(2) which defines the requirement of “serious harm” in respect of a body that trades for profit as serious financial loss. The Court stressed that this financial loss is the measure of the harm caused by the defamation, and does not relate to the harm done to a claimant’s reputation. It added that this therefore requires a inquiry into the actual impact of the defamatory statement and so would look at the particular circumstances of the claimant and the reaction of those who received the published statements. Accordingly, this inquiry cannot be answered only by examining the “inherent tendency” of the words complained of. [para. 15] The Court identified that it was this rejection of the inquiry of “inherent tendency” in the provision that made the Act a significant amendment to the UK law of the defamation. The Act made the harm suffered a test of the defamatory nature of a statement. This amendment means that if a publication of a grave allegation is made only to a small number of people, or to people who did not believe the statement, or to people among whom the claimant has no reputation then the statement would not be defamatory. The Court highlighted that prior to this Act these circumstances may have mitigated the damages but did not affect the defamatory nature of the statement. Parliament intended to amend the law on defamation so that “the defamatory character of the statement no longer depends only on the meaning of the words and their inherent tendency to damage the claimant’s reputation.” [para. 17]
In respect of section 8 of the Act which includes a time-bar by requiring that a claimant sue within a year of the publication of a defamatory statement, the Court held that it refers to the first publication of any statement. Here the Court identified the difference between defamation that is actionable per se – as the cause of action occurs at the time of publication because the interest protected by the law is a claimant’s reputation – and defamation that is not actionable per se which requires the existence of serious harm, and so the cause of action in that case accrues only when such harm is experienced.
The Court noted that section 14 of the Act abolished two categories of slander, namely the imputation of unchastity to a women and that a person has a contagious or infectious disease. It added that section 1 of the Act did not abolish the other two categories (words imputing criminal offences and words tending to injure a person in his or her office, calling, trade, or profession) and so they remain actionable per se (that is, without the need to prove special damage).
Applying that interpretation to the present case, the Court held that Lachaux needed to demonstrate that the harm caused by the newspapers’ publications was serious. The Court agreed with the High Court and Court of Appeal’s determination of the seriousness of the harm which had been based on an assessment of the scale of publications, the fact that the publication had come to the attention of at least one identifiable person in the UK who knew Lachaux, that the publications were likely to have come to the attention of others who knew him or would know of him in the future, and the gravity of the statements.
The Court rejected the newspapers’ argument that the High Court and Court of Appeal had committed errors of principle in the treatment of the facts. The newspapers had submitted that the finding of damage to Lachaux’s reputation by the lower courts was as the result of artificial legal rules such as the repetition rule, which makes it defamatory to report another person’s statement, and the Dingle rule (from Associated Newspapers Ltd v. Dingle  AC 371) that a defendant cannot obtain mitigation of damages by arguing that similar defamatory statements about the claimant have been published by others. The Court held that as the application of the repetition rule is irrelevant to the question of the threshold of seriousness and so section 1 of the Act neither abolished nor limited its application the lower courts were therefore entitled to apply the rule. The Court made the same observation in respect of the Dingle rule, holding that the rule relates to the mitigation of damage, and so as section 1 of the Act did not impact on that issue the lower courts were entitled to apply the rule.
The Court also rejected the newspapers’ argument that the damage Lachaux may suffer in the eyes of people who may get to know him in future was irrelevant. The Court held that there was no principled reason why an assessment of harm should not take into account the impact on people who had not heard of Lachaux at the time as reputation is harmed at the time of publication notwithstanding that a reader knows nothing about the claimant other than what it said in that publication and that only it is only later (after coming to know the claimant personally) that diminished reputation is of any interest to the reader.
The Court dismissed the appeal, but stated that it would “state the law differently from the Court of Appeal.” [para. 26]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This was the first time that the Supreme Court considered the meaning of section 1 of the Defamation Act 2013 (Act) and therefore it provided important clarifications of how the Court interprets the new law. The passage of the Act was expected to update defamation law for the digital age, correct an imbalance in the case law which favored the protection of reputation over freedom of expression, and reduce forum shopping or “libel tourism.”
The Court confirmed that the 2013 Defamation Act had introduced a requirement of “serious harm” into the definition of a defamatory statement. This significantly raised the bar to bring actions, meaning that in addition to the inherent tendency of the words, claimants now have to prove serious harm to their reputation by actual facts in order to be successful. Further, the Supreme Court clarified that section 1(2) of the Act requires bodies body that trades for profit to prove that injury to reputation has actually caused or is likely to cause serious financial loss.
These new thresholds provide increased protections for media organizations from frivolous claims, which in effect increases their freedom of expression and mitigates the chilling effect of defamation laws. However, Mathilde Groppo in Inforrm’s Blog warns that the new threshold of seriousness could also “lead to an increase in argument, correspondence and costs.”
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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