A lawyer for the Independent and Evening Standard has argued against a landmark Court of Appeal ruling last year which said libel claimants would not have to provide concrete evidence of harm to their reputation.
David Price QC told Supreme Court justices that the Defamation Act 2013 requirement that a publication must have caused or be likely to cause “serious harm” to a claimant’s reputation means there must be evidence of actual consequences to them as a result.
He said: “The word ‘serious’ is a word that necessarily imports a consideration of actual or likely consequences and if any harm to reputation hasn’t had – and isn’t likely to have – any adverse consequences, it’s difficult to see how it can be categorised as serious.”
French aerospace engineer Bruno Lachaux launched libel proceedings against the Independent, Evening Standard and Huffington Post after the publication of a number of articles in 2014 reporting allegations pertaining his marriage and family life.
Lachaux denies the allegations, which first appeared in a blog post on the Huffington Post website and were then picked up by other publications including the Independent, the i and the Evening Standard.
In a preliminary trial in July 2015, Mr Justice Warby ruled that articles in the Huffington Post, Independent and Evening Standard had caused serious harm to Lachaux.
An appeal by the publishers was dismissed last year, as Lord Justice Davis said it was enough for a judge to infer that the words complained about were likely to cause serious harm without requiring specific evidence.
Huffington Post publisher AOL then made an offer of amends under the Defamation Act 1996, agreeing earlier this year to apologise publicly to Lachaux in a statement in open court and on its website and acknowledging what it published about him in 2014 was entirely untrue. It also paid him substantial damages and covered his legal costs.
But Independent Print Ltd and Evening Standard Ltd decided to continue their appeal, which was aired in the UK Supreme Court yesterday.
Price argued that there was no evidence of any adverse consequence from the publication of the articles, and that it was likely they were only read by a limited number of readers.
“[There is] no evidence of any reaction whatsoever or any evidence of anyone reading the articles. On what basis can you say harm has been caused that can be classed as serious?”
Price added: “In my submission it isn’t enough for a client to turn up and say ‘serious allegations have been published against me in a national newspaper’.”
The lawyer criticised the previous judgment’s weight on harm that would be caused when readers who did not know the claimant at the time of publication met and got to know him in the future, arguing that the person is unlikely to remember the details of the allegations years later.
Adrienne Page QC, acting for Lachaux, argued that it is “very rare and extremely difficult” for a claimant to prove they have suffered harm.
If they must provide proof of adverse consequences arising from a libel, that would be a “total shift in favour of freedom of expression, whether rightly or wrongly” that was “highly against protection of reputation”, Page said.
She added: “It is the judgement of history – that you don’t know what damage you have suffered.”
Page also criticised Price’s suggestion that he “effectively wants a blanket rule whereby a court as a matter of law could never treat the absence of serious adverse consequences as compatible with the section one test”.
Price addressed the repetition rule, a long-standing common law rule that it is no defence to an action for defamation for a defendant to prove they were only repeating what someone else had previously published.
He argued that the original Huffington Post article “clearly stated” Lachaux was guilty of the allegations, whereas a later Evening Standard article specifically said they had not yet been tested in court.
“Would it be the case if there were a hundred media reports and then one person came along and commented on the allegation that was widely known we would have to ignore all the previous coverage?” Price went on. “That would be absurd and in my submission unfair.
“…[We have] to grapple with the reality of the way the news is covered in the modern era, which is that allegations do get widely reported in different ways over time. It would be artificial and illogical to ignore what’s come before when looking at what’s published subsequently.”
Page denied Price’s suggestion that Parliament wanted to move away from the repetition rule in the Defamation Act 2013, emphasising that in “common law rule there is no defence for the action of defamation that the defendant who is only repeating what someone else had said”.
Picture: UK Supreme Court