Defamation - "Serious Harm"

The Defamation Act 2013 has introduced a new test of “serious harm” for claims arising on or after 1 January 2014.

For individuals, a statement is not defamatory unless its publication has caused or is likely to cause serious harm to their reputation. Corporate entities will have to show that the publication caused or is likely to cause them serious financial loss.

The court will now require a Claimant to prove, on the balance of probabilities, that serious reputational harm has been caused by, or is likely to result in future from, the publication(s) complained of.

Serious harm can be inferred but it is likely that this will happen only in obvious cases – (e.g.) a celebrity is accused in the national media of a serious crime.

Practically, a Defendant can seek to have the serious harm issue examined very early on at a preliminary hearing to limit the extent of the matters in dispute, or potentially end the claim against it.

At that hearing, the court will look at the extent, nature and medium of publication complained of and analyse whether that caused or is likely to cause serious harm taking into account things like the likely audience, the duration of availability and the prominence of the offending words.

Until determination of the above preliminary hearing, the Defendant may elect not to file and serve a Defence before the nature of the claim to be tried has been determined.

Please note that these notes should not be relied upon as legal advice or an interpretation and application of the law to particular circumstances or matters.

The material in these notes has been designed solely for the purpose of giving general guidance. The material does not stand on its own and is not intended to be relied upon for giving specific advice.

To the fullest extent permitted by law, Gisby Harrison will not be liable by reason of any breach of contract, negligence or otherwise for loss or damage (whether direct or indirect) occasioned to any person acting or omitting to act or refraining from acting on these notes or any error or omission in the notes.

Loss and damage as referred to above shall include, but is not limited to any loss of profits or anticipated profits, damage to reputation or goodwill, loss of business or anticipated business, damages, costs, expenses incurred or payable to any 3rd party (in all cases whether direct or indirect) or any other direct or indirect loss or damage.

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