UK: The Libel Bible: What's The (Serious) Harm?

In this article, we take an insight into serious harm and how it is perceived online in today's digital age.

Why is serious harm a requirement?

A statement will not be deemed defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. Moreover, if the claimant is a body that trades for a profit, serious harm has not occurred unless it has caused or is likely to cause the body serious financial loss.

The reasoning behind this requirement is to ensure the Courts do not expend public resources dealing with trivial complaints of defamation.

What is serious harm?

What constitutes 'serious harm' is not a 'one size fits all' approach for every entity. Accordingly, what is 'serious' in one case may not be considered 'serious' in another.

For example, when assessing the serious harm threshold of an entity that trades for profit, serious financial loss for a PLC might look very different to that suffered by a small privately owned company. In one UK case, Brett Wilson LLP, the Court deemed that the loss of a single instruction for a small boutique law firm did constitute serious financial loss.

The courts have also clarified that the question of whether serious harm has been 'caused' is a question of fact, which the claimant has to establish on the balance of probabilities through evidence. Similarly, the phrase 'likely to cause' is a factual question that the claimant has to establish on the balance of probabilities. However, the court recognises that hard evidence of serious harm may be difficult to identify and so it is possible to establish serious harm based on inferences of fact drawn from the factual evidence. It is also worth noting that a claimant cannot establish serious harm by accumulating and piecing together several less impactful statements; serious harm must be established in respect of each statement complained of.

How many people need to read/see/hear the statement?

Whilst the number of people to whom a publication is made is likely to be relevant to the question of whether serious harm has been caused by a publication, it is not a determinative factor. Given that serious harm is a fact-dependent question the Courts are opposed to any rule of thumb on this or any other aspect. A publication to just one person could, in some circumstances, cause serious harm. Equally, in some circumstances, a publication to many people may not cause serious harm. Much depends on the nature, content, and meaning of the statement, on the identities and relationships of the persons who receive the publication, and on how those who received the publication understood it; these are all factors that may bear on the question of whether serious harm has been occasioned or is likely to be.

Serious harm online

The world of social media has of course expanded the world in which defamatory statements can be made, and serious harm caused. The reach and dissemination of statements made on social media are raising issues about the percolation of statements to much wider audiences, which is a feature that the court has recognised.

For example, the Courts have deemed serious harm occurred when defamatory tweets were made implying a claimant had approved of scrawling on war memorials. This was because the defamation had caused or was likely to cause harm to this claimant's reputation in the eyes of third parties of a kind that would be serious for her. While such harm was not considered to be very serious and certainly not towards the top end of the scale, it was serious enough to pass the threshold of seriousness required.

Key takeaways

• A statement will not be defamatory unless its publication has caused or is likely to cause, serious harm to the reputation of the claimant
• Trading entities need to establish financial loss that is serious for them
• Serious harm is a fact-dependent question so there is no 'one size fits all' approach
• Multiple different statements cannot be pieced together to establish "serious harm"
• The audience size is not determinative
• Percolation effects may be part of the picture.

The nature, content, and meaning of the statement, the identities and relationships of the persons who receive the publication, and how they understood it, are all relevant to the question of whether serious harm has been, or is likely to be, caused. The team at Gowling WLG is experienced in advising on defamation cases.