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The Defamation Act 2013 came into force at the beginning of the year with the stated intention of making it harder for Claimants to establish a claim in defamation. A key way in which the Act proposed to do this was by providing that a statement would not be defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the Claimant.

Defamation lawyers have been waiting since them for a judicial view on what constitutes "serious harm" and finally got one earlier this month with Cooke and Midland Heart Ltd v MGN Ltd & Trinity Mirror Midlands Ltd is.  

In brief, the Sunday Mirror published an article about the TV programme, Benefits Street, focusing on landlords renting out properties in dreadful states of repair, whilst allegedly raking in large rental incomes from individuals on housing benefits. The article went on to allege that there were other landlords making money from housing benefits and said that there were three more homes in the street which were owned by Midland Heart Housing Association. It then stated that "its Chief Executive Ruth Cooke earns £179,000 a year and lives in a large house in Stroud, Glos".  

Ms Cooke and her employer did not like this and issued proceedings on the basis that they said that the references to them in the article, when taken in the context of the whole of the piece, suggested that the association was a slum landlord letting out squalid houses to people in receipt of housing benefits, Ms Cooke was responsible for that action and had become wealthy as a result of it. We have to say, we don't think that any of those inferences were unreasonable.  

Mr Justice Bean was asked to consider two preliminary issues, one of which was as to whether "serious harm" had occurred.

The judge said that not all cases would require evidence to satisfy the "serious harm" test, as some cases would be so obviously likely to cause harm that the likelihood of serious harm to reputation was plain (for example allegations that someone was a terrorist or a paedophile). However, on the basis that the timing of the harm was to be assessed as at the date of issue of proceedings, Mr Justice Bean found that the prompt and easily accessible apology published by the Sunday Mirror was significant because it would eradicate or minimise any unfavourable impression created in the mind of the hypothetical reasonable reader who read both the article and the apology. The Claimants accepted that there was no specific evidence of serious harm to the reputations and the judge decided that he could not infer serious harm in the case. As a result of this the claim failed.  

We have no real doubt that the same article published last year would have been considered defamatory (although we are certainly not saying that it would necessarily have resulted in a substantial award of damages). On this basis it seems that the Act is doing its job of raising the bar and is therefore shifting the balance between free speech and the right to reputation in favour of free speech. We do, however, question whether it may have gone too far. One consequence of this case is that a party can publish a defamatory article and as a long as it makes a public apology quickly it can effectively defeat a defamation claim (except perhaps where the allegations are obviously harmful). This may seem like a fair result if an apology will be as widely read as the original article, but we're far from convinced that is what happens in practice. How many front page apologies have you read?

Perhaps sorry will no longer be the hardest word for tabloid editors...

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