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‘Serious harm’ required to succeed in a defamation claim

In 2005, a significant overhaul of the Uniform Defamation Laws (UDL) in Australia took place, with each state in Australia enacting largely consistent legislation. That legislation recalibrated the balance struck by Australian defamation law between freedom of speech on the one hand, and protection of reputation on the other. In the last 12 months, the UDL has again been subject to refurbishment, with the introduction of a number of notable pro-publisher changes in several Australian jurisdictions.

So far, Western Australia has not followed suit and implemented those recent legislative changes. The changes include a new section 10A which requires a person to prove they suffered “serious harm” in order to succeed in defamation. Arguably, it does not matter; at common law, if a person does not suffer any serious harm, then any defamation claim may be liable to be stayed on the basis of a lack of proportionality; see Armstrong v McIntosh [No 2] [2019] WASC 379.

As regards the statutory threshold of serious harm, our Eastern states counterparts are beginning to grapple with the test’s interpretation.

Newman v Whittington [2022] NSWSC 249

The Supreme Court of NSW became the first Australian court to consider the serious harm test for a defamation action in Newman v Whittington [2022] NSWSC 249 (Newman). The decision confirmed that a plaintiff is now obliged to prove serious harm as a fact in every case, abolishing the common law rule which presumed reputational damage upon the publication of defamatory material – a significant shift.

In Newman, Justice Sackar confirmed that the issue of serious harm would normally be determined before trial unless special circumstances justified its postponement. These circumstances include, but are not limited to, cost implications, the court’s resources and whether the determination of serious harm is linked to other issues during the trial.

In his discussion of how the “serious harm” test should apply in Australia, Justice Sackar considered the UK’s equivalent section 1. Despite minor variations between the two legislative provisions, his Honour observed “no material difference” between the Australian and UK formulations.

Referring specifically to Lachaux v Independent Print Limited [2019] UKSC 27 (Lachaux) (the first time that the English Supreme Court had considered the meaning of the section 1 test), his Honour described the decision as a “powerful and persuasive analysis” of an analogous provision.

Whilst the decision is not binding on Australian courts, Justice Sackar considered it persuasive authority, endorsing the UK threshold for serious harm – where harm is determined by reference to the actual facts of a publication’s impact, not just to the meaning of the words used.

Banks v Cadwalladr [2022] EWHC 1417 (QB)

On 13 June 2022, England’s High Court of Justice delivered its decision in Banks v Cadwalladr [2022] EWHC 1417 (QB) (Banks).

Whilst Banks saw Brexit backer Mr Arron Banks unsuccessful in his defamation action against the Observer and Guardian journalist Ms Carole Cadwalladr, usefully for Australian purposes, a succinct summary of the principles for determining whether a publication has caused serious or is likely to cause serious harm to the plaintiff’s reputation.

The claim concerned a TED talk given by Ms Cadwalladr in 2019, entitled “Facebook’s role in Brexit – and the threat to democracy”. The words in dispute were spoken by Ms Cadwalladr in the TED talk “And I am not even going to get into the lies that Arron Banks has told about his covert relationship with the Russian government.” A recording of the TED talk was published on the TED.com website shortly after it was given. Ms Cadwalladr also Tweeted about the event, with a hyperlink to the TED talk.

Serious harm

An essential issue at trial was whether the statements had caused or were likely to cause “serious harm” to Mr Banks’ reputation, within the meaning of section 1 of the English act. At [51] Justice Steyn summarised the following 13 principles:

  1. The protection of reputation is the primary function of the law of defamation and section 1 is concerned with harm to the reputation of the claimant, being harm of the kind represented by general damage rather than special damage.
  2. Section 1 imposes a higher threshold of seriousness than the common law rules which were seen as unduly to favour the protection of reputation at the expense of freedom of expression, with the provision intended to effect a substantial change to the law of defamation.
  3. The court should assess whether the serious harm test is met in respect of each statement individually, not cumulatively.
  4. There is no presumption of serious harm. A claimant must demonstrate as a fact that the publication of the statement complained of has caused or is likely to cause harm to reputation that is “serious”.
  5. The propositions that the publication “has caused” serious harm to the claimant’s reputation and that it “is likely to” cause such harm are each propositions of fact which necessarily call for an investigation of the actual impact of the statement:
    • when determining whether a publication “has caused” serious harm, the focus is on historic harm. What were the consequences for the claimant’s reputation, in terms of the actual impact on those to whom the publication was made?
    • when determining whether a statement “is likely to” cause serious harm, the focus is on probable future harm.
  6. Whether a publication causes serious harm depends on the reactions of others (rather than the perception of the claimant) including the impact of the publication on those who do not know the claimant but might get to know them in the future.
  7. A claimant may produce evidence from those who watched, heard or read the publication complained of about its impact. Comments posted online in response to the publication can be evidence of reputational harm, to the extent they can be said to be a natural and probable consequence of the publication complained of.
  8. Inferences of fact as to the seriousness of harm done to a claimant’s reputation may be drawn from the evidence as a whole, including the meaning of the words, the scale and circumstances of publication, the claimant’s situation and the inherent probabilities. Even a seriously harmful allegation may not cause serious harm to their reputation if those to whom it was made consist only of people whose opinion of the claimant is of no consequence or those who are unlikely to have believed the words complained of.
  9. If it is shown that the claimant already had a bad reputation in the relevant sector of his life, that will reduce harm – with assessment of whether the serious harm test is met and assessment of general damage raising similar questions of causation. The evidence that is admissible is limited to evidence of general bad reputation in the sector.
  10. Evidence of damage to the claimant’s reputation done by earlier publications of the same matter is irrelevant to the question whether serious harm was caused, or is likely to be caused, by the publication complained of.
  11. The court should not consider the issue of serious harm in blinkers. Directly relevant background context (see the “Burstein principle”) may be relevant to the assessment of whether the serious harm test is met.
  12. In general, a defamation has greater potential to cause harm if it is published to the world at large, and if it has been published repeatedly, than if it has been published to a single person on a single occasion. However:
    • assessment of harm to reputation is not a numbers game;
    • one well-directed arrow may hit the bull’s eye of reputation and cause more damage than indiscriminate firing;
    • very serious harm to reputation can be caused by publication to a relatively small number of publishes;
    • a claimant can also rely upon the likely percolation or “grapevine effect” of defamatory publications, which has been immeasurably enhanced by social media and modern methods of electronic communication.
  13. A vindictive or vengeful motive for bringing the claim is not relevant to the assessment of whether the test in section 1 is met.

Evidence of serious harm in Banks

In order to overcome the serious harm threshold, Mr Banks’ submissions focused upon the gravity of the imputation and the scale of publication.

Mr Banks claimed the statements imputed “very serious dishonesty” and a relationship with Russia, “a foreign power that is adverse to the United Kingdom”.

Relevantly, the meaning of the words complained of in both the TED talk and the Tweet were determined as a preliminary issue in Banks v Cadwalladr [2019] EWHC 3451 where Justice Saini determined the “single meaning” to be:

“On more than one occasion Mr Banks told untruths about a secret relationship he had with the Russian government in relation to acceptance of foreign funding of electoral campaigns in breach of the law on such funding”.

As to the scale of publication, Mr Banks gave evidence that the video had been viewed 1,015,640 times, and was available in 27 languages.

Determination

The court found that it could be inferred that a sizeable number of people who knew or would later come to know Mr Banks, would have viewed the TED talk and believed what was said about him, lowering his reputation in their eyes. This was a proper inference to draw given:

  • the extent of publication;
  • the gravity of the single meaning;
  • the serious nature of the TED talk;
  • the fact that it was given by an award-winning investigative journalist; and
  • the authoritative and credible nature of the international platform on which it was given (that is, at the main TED conference).

In relation to the TED talk (but not the Tweet), Mr Banks had demonstrated serious harm. The onus then then fell upon Ms Cadwalladr to show that she had a defence.

Conclusion

The statutory serious harm threshold will require plaintiffs to consider to whom a publication was actually communicated, and the impact of that communication, in order to assess if serious harm to reputation was in fact caused. Without such an assessment, and extraneous evidence supporting a claim, defamation claims which may have relied simply on the character of the words are now more likely to fail.

For more information, please contact the authors:
Nikki Randall | Senior Associate

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

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