Threshold that defamatory statements have to meet so as to cause serious harm to a person’s reputation or body trading for profit
September 23, 2019
BL v Independent Print Ltd and another  UKSC 27
Supreme Court of the United Kingdom
Lord Kerr, Lord Wilson, Lord Sumption, Lord Hodge & Lord Briggs
June 12, 2019
Reported by Faith Wanjiku
Tort Law- defamation-libel-threshold of serious harm- reference only to the inherent tendency of the words vis-à-vis investigation of the facts on the actual impact of the statement- what was the threshold that statements had to meet so as to cause serious harm to a person’s reputation or body trading for profit – Defamation Act, 2013, section 1(1).
Tort Law- defamation-libel-statements that were actionable per se vis-à-vis those that were not- what was the effect of the distinction between a statement that was actionable per se from that which was not actionable per se.
Tort Law- defamation-libel-repetition rule- impact on threshold of seriousness- what was a repetition rule in determining threshold of seriousness in defamatory statements and the policy behind it.
Tort Law- defamation-libel- Dingle rule-effect of-what was the effect of the Dingle rule on defamatory statements.
Tort Law- defamation-libel- assessment of the harm to the claimant’s reputation- readers or hearers who had never heard of a claimant at the time- what was the impact of publications on those who did not know a claimant but might get to know them in future.
The claimant was a French aerospace engineer who at the relevant time lived with his British wife in the United Arab Emirates (UAE). The marriage broke down, and in April 2011 he began divorce proceedings in the UAE courts and sought custody of their son. In March 2012, the claimant’s wife went into hiding with in the UAE, claiming that she would not get a fair trial in its courts. In August 2012, the UAE court awarded custody of to his father. In February 2013, the claimant initiated a criminal prosecution against his wife for abduction. In October of that year, having found out where his son was, he took possession of him under the custody order. In January and February 2014, a number of British newspapers published articles making allegations about the claimant’s conduct towards his wife during the marriage and in the course of the divorce and custody proceedings. Those appeals arose out of two libel actions begun by him in the High Court on December 2, 2014 against the publishers of the Independent and the Evening Standard, and a third begun on January 23, 2015 against the publisher of the I (newspaper).
At the High Court during a meaning hearing it was held that the article in the Independent bore eight defamatory meanings and the article in the Evening Standard twelve. In summary, the articles were held to have meant inter alia that the claimant had been violent and abusive towards his wife during their marriage, had hidden their son’s passport to stop her removing him from the UAE, had made use of UAE law and the UAE courts to deprive her of custody and contact with her son, had callously and without justification taken their son out of her possession, and then falsely accused her of abducting him. For the purpose of the trial of the issue of serious harm, which took place before the High Court in July 2015, the newspapers did not contest the primary facts set out in the claimant’s particulars of claim. Their case was that the statements in the articles were not defamatory because they did not meet the threshold of seriousness in section 1(1) of the Defamation Act of 2013.
i What was the threshold that statements had to meet so as to cause serious harm to a person’s reputation or body trading for profit under section 1(1) of the Defamation Act, 2013?
ii What was the effect of the distinction between a statement that was actionable per se from that which was not actionable per se.
iii What was a repetition rule in determining threshold of seriousness in defamatory statements and the policy behind it?
iv What was the effect of the Dingle rule on defamatory statements?
v What was the impact of publications on those who did not know a claimant but might get to know them in future?
Relevant Provisions of the Law
Defamation Act, 2013
Section 1-Serious harm
(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.”
1. Parliament was taken to have known what the law was prior to the enactment. It had to therefore be taken to have known about the basic principles on which general damages were awarded for defamation actionable per se. There was a presumption that a statute did not alter the common law unless it so provided, either expressly or by necessary implication. But that was not an authority to give an enactment a strained interpretation. It meant only that the common law should not be taken to have been altered casually, or as a side-effect of provisions directed to something else. The Defamation Act 2013 (the Act) unquestionably did amend the common law to some degree. Its preamble proclaimed that fact; an Act to amend the law of defamation.
2. It was not disputed that there was a common law presumption of damage to reputation, but no presumption that it was serious. So the least that section 1 of the Act achieved was to introduce a new threshold of serious harm which did not previously exist. The question on those appeals was what the legal implications of that change were and what necessarily followed from it. Even where some change to the common law was intended, it should not go any further than that. Parliament could be presumed not to have altered the common law further than was necessary.
3. Section 1 of the Act on serious harm necessarily meant that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, was not to be so regarded unless it had caused or was likely to cause harm which was serious. The reference to a situation where the statement had caused serious harm was to the consequences of the publication, and not the publication itself. It pointed to some historic harm, which was shown to have actually occurred. That was a proposition of fact which could be established only by reference to the impact which the statement was shown actually to have had. It depended on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same had to be true of the reference to harm which was likely to be caused. In that context, the phrase naturally referred to probable future harm.
4. If past harm could be established as a fact, the legislator had to have assumed that likely harm could be also. As to pre-publication injunctions, the section was designed to import a condition to be satisfied if the statement was to be regarded as defamatory at all. It was not concerned with the remedies available for defamation, whether interlocutory or final. It was right to add that pre-publication injunctions were extremely rare, because of the well-established constraints on judicial remedies which restricted freedom of expression in advance of publication.
5. It was necessary to read section 1(1) with section 1(2) of the Act. Section 1(2) of the Act was concerned with the way in which section 1(1) was to be applied to statements said to be defamatory of a body trading for profit. It referred to the same concept of serious harm as section 1(1), but provided that in the case of such a body it had to have caused or be likely to cause serious financial loss. The financial loss envisaged was not the same as special damage, in the sense in which that term was used in the law of defamation. Section 1 was concerned with harm to reputation, whereas special damage represented pecuniary loss to interests other than reputation. Section 1(2) had to refer not to the harm done to the claimant’s reputation, but to the loss which that harm had caused or was likely to cause. The financial loss was the measure of the harm and had to exceed the threshold of seriousness. As applied to harm which the defamatory statement had caused, that necessarily called for an investigation of the actual impact of the statement.
6. A given statement said to be defamatory could cause greater or lesser financial loss to the claimant, depending on his or her particular circumstances and the reaction of those to whom it was published. Whether that financial loss had occurred and whether it was serious were questions which could not be answered by reference only to the inherent tendency of the words. The draftsman had to have intended that the question ‘what harm it was likely to cause’ should be decided on the same basis.
7. If serious harm could be demonstrated only by reference to the inherent tendency of the words, it was difficult to see that any substantial change to the law of defamation had been achieved by what was evidently intended as a significant amendment. The main reason why harm which was less than serious had given rise to liability before the Act was that damage to reputation was presumed from the words alone and might therefore be very different from any damage which could be established in fact. Suppose that the words amounted to a grave allegation against the claimant, but they were published to a small number of people, or to people none of whom believed it, or possibly to people among whom the claimant had no reputation to be harmed. The law’s traditional answer was that those matters could mitigate damages but did not affect the defamatory character of the words. Yet it was plain that section 1 was intended to make them part of the test of the defamatory character of the statement.
8. The above analysis was inconsistent with the previous common law governing statements actionable per se in that the defamatory character of the statement no longer depended only on the meaning of the words and their inherent tendency to damage the claimant’s reputation. To that extent Parliament intended to change the common law. The result was not a revolution in the law of defamation, any more than the lower thresholds of seriousness introduced by previous decisions.
9. Section 8 of the Act was concerned with limitation. Section 4A of the Limitation Act provided for a limitation period in defamation actions of one year from the accrual of the cause of action. The cause of action was treated at common law as accruing on publication where it was actionable per se, and on the occurrence of special damage in other cases. Successive publications therefore gave rise at common law to distinct causes of action. Section 8 of the Defamation Act, 2013 provided that where a statement had been made to the public or a section of the public (for example in a newspaper) and later republished in the same or substantially the same terms, any cause of action against the (same) person for defamation in respect of the subsequent publication was to be treated as having accrued on the date of the first publication.
10. The object of that provision was to deprive claimants of the right to sue on a further publication by the same person of substantially the same defamatory statement, more than a year after the first publication. They had to sue on the first publication or run the risk of being time-barred. The argument was that section 8 of the Act assumed that the common law rule that the cause of action accrued on publication subsisted, subject only to the modification that the accrual of the cause of action for a qualifying second publication was backdated to the date of the first. Section 1 had to be construed on the footing that the cause of action was complete on publication and not on some later date at which serious harm could occur.
11. It was necessary to distinguish between the damage done to an interest protected by the law, and facts which were merely evidence of the extent of that damage. Where a statement was actionable per se, the interest protected by the law was the claimant’s reputation. As an element in the cause of action for defamation, publication did not mean commercial publication, but communication to a reader or hearer other than the claimant. The impact of the publication on the claimant’s reputation would in practice occur at that moment in almost all cases, and the cause of action was then complete. If for some reason it did not occur at that moment, the subsequent events would be evidence of the likelihood of its occurring. In either case, subsequent events could serve to demonstrate the seriousness of the statement’s impact including, in the case of a body trading for profit, its financial implications. It did not follow that those events had to have occurred before the claimant’s cause of action could be said to have accrued. Their relevance was purely evidential. The position was different where a statement was not actionable per se, because the interest protected by the law in that case was purely pecuniary. The pecuniary loss had to therefore have occurred.
12. Section 14 of the Act was concerned only with the law of slander. It abolished two of the four categories of slander actionable per se, by repealing the Slander of Women Act 1891 which made the imputation of unchastity to a woman actionable per se, and by providing that an imputation that a person had a contagious or infectious disease was not to be actionable without proof of special damage. The argument was that since section 14 of the Act abolished two of the categories of slander actionable per se, section 1 should not be read as abolishing all of them. The fallacy of that argument was that it assumed that section 1 did abolish all of them which it did not. To say that a slander was actionable per se simply meant that it was actionable without proof of special damage. That was still the case for the two surviving special categories of slander. Special damage in that context meant damage representing pecuniary loss, not including damage to reputation. Section 1 was not concerned with special damage in that sense but with harm to the reputation of the claimant, i.e. with harm of the kind represented by general damage. It simply supplemented the common law by introducing a new condition that harm of that kind had to be serious and in the case of trading bodies that it had to result in serious financial loss.
13. The common law rule was that damage to reputation was presumed, not proved, and that the presumption was irrebuttable. If the common law rule survived, then there was no scope for evidence of the actual impact of the publication. That was the main reason why it could not survive.
14. The claimant had to demonstrate as a fact that the harm caused by the publications complained of was serious, and the High Court held that it was. It heard evidence from the claimant himself and three other witnesses of fact, and received written evidence from his solicitor. It also received agreed figures, some of them estimates, of the print runs and estimated readership of the publications complained of and the user numbers for online publications. The High Court based its finding of serious harm on;
a. the scale of the publications;
b. the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew the claimant;
c. that they were likely to have come to the attention of others who either knew him or would come to know him in future; and
d. the gravity of the statements themselves, according to the meaning attributed to them by the High Court.
15. The claimant would have been entitled to produce evidence from those who had read the statements about its impact on them. His case would not necessarily fail for want of such evidence. The High Court’s finding was based on a combination of the meaning of the words, the situation of the claimant, the circumstances of publication and the inherent probabilities. There was no reason why inferences of fact as to the seriousness of the harm done to the claimant’s reputation should not be drawn from considerations of that kind. The High Court’s task was to evaluate the material before it, and arrive at a conclusion on an issue on which precision would rarely be possible. A concurrent assessment of the facts was made by the Court of Appeal. Findings of that kind would only rarely be disturbed by the court, in the absence of some error of principle potentially critical to the outcome.
16. The repetition rule was a rule governing the meaning of a statement and the availability of the defence of truth. A statement that someone else had made a defamatory statement about the claimant, although literally true, was treated as equivalent to a direct statement to the same effect. The policy was that repeating someone else’s libelous statement was just as bad as making the statement directly. The rule had nothing to do with the threshold of seriousness, and nothing in the Act could be taken as implicitly abolishing it or limiting its application.
17. The effect of the Dingle rule (Associated Newspapers Ltd v Dingle ) (that a defendant cannot rely in mitigation of damages on the fact that similar defamatory statements have been published about the same claimant by other persons) was to treat evidence of damage to the claimant’s reputation done by earlier publications of the same matter as legally irrelevant to the question of what damage was done by the particular publication complained of. It had been criticised, but it was well established. It had the pragmatic advantage of making it unnecessary to determine which of multiple publications of substantially the same statement occurred first, something which in the case of a newspaper would often be impossible to ascertain and might differ from one reader to the next. The practical impact of the Dingle rule in the modern law was limited by section 12 of the Defamation Act 1952, which allowed a defendant to rely in mitigation of damage on certain recoveries or prospective recoveries from other parties for words to the same effect; and by the operation of the Civil Liability (Contribution) Act 1978. Section 1 of the Act was concerned with the threshold of harm and not with the measure or mitigation of general damage. But both raised a similar question of causation. It would be irrational to apply the Dingle rule in one context but not the other, and no one was inviting the instant court to abrogate it.
18. Turning, finally, to the complaint about the impact of the publications on those who did not know the claimant but might get to know him in future, there was no principled reason why an assessment of the harm to the claimant’s reputation should not take account of the impact of the publications on those who had never heard of him at the time. The claimant’s reputation was harmed at the time of publication notwithstanding that the reader or hearer knew nothing about him other than what the publication told him. It could not make any difference that it was only later, when he came to know the claimant personally, that the latter’s diminished reputation was of any personal interest to him.
Relevance to the Kenyan Situation
Defamation in Kenya is governed by the Defamation Act of Kenya, Cap 36 Laws of Kenya. However case law on defamation has been more jurisprudential in evolving the law of defamation.
The Court of Appeal has established precedence in matters defamation in a number of judgments. In S M W v Z W M  eKLR, it was held that a statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.
The elements of the tort of defamation were set out in Nation Media Group Limited and 2 Others v John Joseph Kamotho and 3 Others (Civil Appeal No 284 of 2005 (unreported)), as that the statements complained have to be defamatory in character, secondly that the statements referred to the claimant or that he could be identified, and thirdly, that the statements were published or communicated to someone other than claimant.
The Court of Appeal in Musikari Kombo v Royal Media Services Limited  eKLR went further and even held that a party can bring an action for defamation if the published words concerned the party by inference. This was after the court also found that the offending words referred to the appellant’s wife who filed a separate claim and succeeded. However the Court found that the broadcasts were also concerning the appellant to a certain extent. That was because his name and his status were clearly mentioned in both broadcasts.
The UK case has however gone further than the Kenyan jurisprudence and added the repetition rule (repeating someone else’s libelous statement was just as bad as making the statement directly) and Dingle rule (a defendant cannot rely in mitigation of damages on the fact that similar defamatory statements have been published about the same claimant by other persons) and their impact on defamatory statements. The repetition rule governs the meaning of a statement and the availability of the defence of truth while the Dingle rule was to treat evidence of damage to the claimant’s reputation done by earlier publications of the same matter as legally irrelevant to the question of what damage was done by the particular publication complained of. The two rules emanating from common law will therefore be helpful in developing the Kenyan jurisprudence in the law of defamation when judgments with their elements come up in court.