Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
Closed Contracts Expression
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The Court of Appeal ruled that five newspaper articles written about the divorce of a French citizen and British woman were defamatory. The series of articles were published in the United Kingdom and the man was characterized as a domestic abuser and the woman as a victim of domestic violence and a biased UAE legal system. This was the first time the Court had to determine a defamation claim following the passage of the 2013 Defamation Act, and the Court held that the legislation set a higher standard than what had been established by case-law as the Act required that a statement have caused or is likely to cause serious harm to the reputation of the claimant for it to be defamatory. Nevertheless, the Court held that the five articles in question were defamatory.
In 2014, Bruno Lachaux, a French citizen, learned of five articles published in the United Kingdom which appeared to be part of a campaign to defame him. At the time he was looking for a job in the United Kingdom. Lachaux had been married to a British woman in the United Arab Emirates (UAE), but the couple had divorced acrimoniously in 2011.
The first article, published on January 20 2014, in the Huffington Post characterized his wife as a victim of domestic abuse who had had to flee the UAE with her son in order to escape her husband’s harassment. According to the article, the woman risked prosecution for the kidnapping of the child because the UAE legal system did not afford protection to victims of domestic violence. This article was removed from the UK website of the Huffington Post on September 29 with an “apology” from the publisher stating “we accept that the post might fairly be criticized for conveying a one-sided impression of the couple’s dispute” (para. 15).
The second article, published in the Independent Newspaper on January 25, 2014, accused the man of falsely accusing his wife of child kidnapping exposing her to several years in a Dubai prison and of deliberately abusing Emirati law, for his own benefit. The third article was an abbreviated version of the second one. The fourth article, published in the Huffington Post on February 6, 2014, again made reference to how the British woman had been forced to flee Dubai with her son to escape her abusive French husband. The fifth article, published in print and online in the London Evening Standard on February 10, 2014, was similar in content to the second one.
Lachaux brought a defamation claim against the publishers of the five articles in the High Court of Justice (Queen’s Bench Division) (HCJ) in a decision issued by Warby J. While none of the articles referred to Lachaux by name it was either conceded by the publishers or accepted by the Court that they all referred to him.
The publishers argued that Lachaux’s claim constituted abuse of process and that his claim was non-actionable because he had not suffered “serious harm”. Warby concluded that the five publications had indeed caused serious harm to the applicant’s reputation. Warby held that Lachaux was not required to prove that he had an established reputation in the United Kingdom nor provide actual evidence that someone’s opinion of him had been negatively impacted by the publication. Warby held that whether harm had occurred could be determined by looking at the nature of the allegations and the credibility and reach of the outlets through which they were made. Warby also took into consideration the applicant’s reputation in Dubai given that the articles were able to reach readers in the UAE through the internet. Warby rejected the publishers’ contention of abuse of process and noted that a conclusion of non-abuse of process followed inevitably from the finding of serious harm.
The publishers were granted leave to appeal to the Court of Appeal (Civil Division).
The Court of Appeal was required to determine what impact, if any, the introduction of Section 1(1) of the Defamation Act (2013) had on previously accepted common law principles regarding the actionability of defamation claims and the assessing of a libellous publication’s actual or potential harm.
The Court of Appeal’s decision was delivered by Lord Justice Davies who noted that, in libel cases, “it was settled at common law that damage is presumed: the extent of the damage then being left, in the usual way, to assessment at trial if liability on the part of the defendant is established” (para. 28). Davis referred to the British case of Thornton v. Telegraph Media Group Limited  EWHC 1414 (QB) (the Thornton case) which had introduced a “threshold of seriousness” requirement as a condition for the actionability of libel claims (para. 30) to prevent “trivial claims” and ensure proportionality between the protections afforded to persons’ rights to freedom of expression and to personal dignity as required by the European Convention on Human Rights.
Davis explained that it could be accepted that Parliament’s intention in enacting the Defamation Act was to build upon the case law principles established in the Thornton case, Cammish v. Hughes  EWCA Civ 1655,  EMLR 13, Jameel (Mohammed) v. Wall Street Journal  UKHL 44,  1 AC 359 and Jameel (Yousef) v. Dow Jones  EWCA Civ 75,  QB 946 and “raise the bar” for bringing a defamation claim. Section 1(1) of the Act states that “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”. Davis noted that, while the case law that had preceded it referenced a standard of “substantial harm”, the statute instead made reference to “serious harm”, which he saw as a weightier wording. He then acknowledged that by adopting the wording, “is likely to cause serious harm” the statute seemed to set a higher standard than what had been established by case-law as this only required a “tendency”.
Davis disagreed with the approach adopted by Warby in respect of the harm Lachaux was required to prove . Warby had interpreted “is likely to” as meaning “more probable than not” and considered that “to the extent that it may matter, the words ‘is likely to cause’ as used in s.1(1) are to be taken as connoting a tendency to cause” (para. 50). In addition, Davis held that the Warby’s requirement that Lachaux prove that the impugned articles had caused or were likely to cause him serious harm was not appropriate because it was in contradiction with the common law principle that damages are to be presumed in the case of defamatory statements. Davis stated that this common law principle had not been replaced by the new statute. In addition, he considered that lengthy hearings were undesirable and costly and, thus, that introducing a requirement to conduct them could not be inferred to have been Parliament’s intention in adopting the statute.
Davis acknowledged that, while there was a legal presumption that defamatory statement cause damages, there “is no presumption, at law, of serious damage in a libel case” (para. 72). He said that the seriousness of the reputational harm could be proven “by a process of inference from the seriousness of the defamatory meaning” (para. 72) and the context in which the words are used. He considered evaluating seriousness through inference preferable than conducting lengthy evidentiary hearings for that purpose.
Davis set out his preferred approach and said that “where a claimant has advanced a sufficient case on serious reputational harm, by reference to the seriousness of the imputation conveyed by the words used, then ordinarily the case should be left to go to trial: where there can then be finally decided the extent to which there was serious reputational harm and, if it is so established, what the resultant damages – including also recoverable damages for consequential loss (if any) – should be” (para. 81).
Davis rejected the publishers’ argument that their articles had not produced “serious harm” because the same allegations had also been made in other publications on the grounds that, with reference to the U.K. case, Dingle v. Associated Newspapers Ltd  AC 371, “each libel, as published, is actionable as causing distinct damage to reputation” (para. 91).
Davis also rejected the publishers’ argument that Lachaux had failed to mitigate damages because he had waited over eight months before challenging the publication. As the Huffington Post article had been withdrawn immediately after the applicant complained, the publishers claimed damage would have been avoided if the applicant had expressed his opposition to the article in a timely manner. However, the judge considered that “the reality was, as a matter of inference, that the harm will have been primarily caused on the initial publication: it did not necessarily become the more serious, in terms of harm to reputation, solely because it was not swiftly retracted. There are, to my mind, considerable difficulties generally with the notion that an alleged failure to mitigate can somehow extinguish a cause of action” (para. 97).
Accordingly, Davis upheld Warby’s decision noting that it “was in terms of the outcome even if not in all respects in terms of his approach, correct to rule in favour of the claimant” (para. 102), and held that the articles did constitute defamatory statements.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision is primarily concerned with clarifying the conditions for the actionability of defamation claims under the new statutory law of the United Kingdom. However, the decision did contract freedom of expression in accepting that each libel is actionable independently of whether the impugned allegations had also been made in other publications and in rejecting the publishers’ arguments that Lachaux should have mitigated the damage he suffered by seeking a withdrawal or apology soon after publication of all the articles.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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