Defamation and the “Serious Harm” Threshold Test

As of January 2014, the Defamation Act 2013 introduced a “serious harm” threshold for defamation claims. As set out in section 1(1)a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

When it comes to the “serious harm” test, the court employs a broad approach and considers the seriousness of the allegations and the extent of the circulation of any libel. The onus is placed on the Claimant, to show that the serious harm threshold has been satisfied.

However, trivial cases would most likely be struck out as an abuse of process if there was very little at stake. Hence, the courts established the principle of ‘real and substantial tort’ from Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75. If there had been low publication or the Claimant had already achieved vindication by other means, then it is unlikely that the defamation claim would succeed, as it “would not be worth the candle”.

The change in defamation law can be seen as a good thing because it stops trivial claims from getting off the ground, thereby saving courts’ time and defendants’ costs.

For further information, please contact Dominic Green on 020 7227 7411 or dominic.green@rlb-law.com.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.