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Law column: 'Serious Harm' case to be appealed

As has been evidenced in the last week, autumn succeeds the summer, just as certainly as night succeeds the day. However, in the current climate there is far less certainty when it comes to the “serious harm” test.

As I reported back in August, the case of Cooke & Midland Heart v MGN was the first to consider the issue of “serious harm” – the new threshold that has to be reached in order for a statement to be defamatory. The test was introduced by Section 1 of the Defamation Act 2013.

In Cooke, Mr Justice Bean held that the claimants’ case did not pass the “serious harm” test. In making this finding, Mr Justice Bean gave significant weight to the apology that was printed in the following edition of the Sunday Mirror, the speedy removal of the offending paragraph from the online version, and the fact that the apology is now more prominently available online than the original story.

Mr Justice Bean also found that the readership of the newspaper week on week was more or less static, so the apology would “eradicate or at least minimise any unfavourable impression created by the original article”.

The claimants’ case was struck out on the basis that the statements they were complaining about did not meet the “serious harm” test. However, the claimants have now been granted permission to appeal the decision to the Court of Appeal. The fact that permission to appeal has been granted is far from surprising, given the importance of the legal principle at stake.

As it stands, the decision in Cooke undoubtedly increases the threshold quite significantly, over the predecessor test of “substantial harm”.

Critics of the ruling have argued that Cooke has increased the threshold over and above what Parliament intended when the Defamation Act 2013 was written.

Further, questions have been raised about whether the current interpretation of the “serious harm” test is compatible with the main aims of a defamation action – the vindication of the claimant’s reputation and the promise that the statements will not be published again in the future.

The consensus among specialist media barristers seems to be that Cooke has gone too far, and is likely to be overturned, in some respects at least.

So what does all this mean for the regional press?

As a starting point, there is no doubt that the “serious harm” test was always supposed to increase the threshold from “substantial harm” – it was introduced in order to prevent trivial cases from being progressed to court.

So, whatever the outcome of the appeal, publishers should still be in a better position post Defamation Act 2013 and the “serious harm” test, than prior to it. The likelihood is that if Cooke is overturned, we will end up with a threshold somewhere between the old test of “substantial harm”, and the current ruling.

We are a long way from certainty when it comes to the new test, but the appeal, which is due to be heard in 2015, should shed more light on the issue.

In the meantime Cooke is good law, and if something wrong is published, the importance of a prompt amendment and prominent apology should not be underestimated.

At the risk of repeating myself…remember that nothing is black and white when it comes to the law.