Trivial libel claims are less likely to succeed following a legal ruling that has clarified what is ‘defamatory’ under English law.

In litigation over a book review by journalist Lynn Barber, Mr Justice Tugendhat said the law only allowed claimants to sue for libel where the impact on their reputation crossed a “threshold of seriousness”.

He said a publication should not be deemed ‘defamatory’ unless it “substantially affects in an adverse manner the attitude of other people toward the claimant, or has a tendency to do so”.

This new test involves a clear hurdle of “seriousness” as a protection against weak or trivial libel claims that unjustifiably threaten freedom of expression.

Before arriving at his important definition of ‘defamatory’, the judge reviewed 170 years of case law.

He said his ruling was also influenced by the enactment of the Human Rights Act, the media’s right to freedom of expression and the principle of ‘proportionality’.

His ruling was given in a libel claim brought by Dr Sarah Thornton, whose book Seven Days in the Art World was reviewed unfavourably by Ms Barber in The Daily Telegraph.

Reading between the lines, it is clear a number of judges who deal with libel cases have become concerned to prevent weak libel claims being pursued with large costs racked up on both sides and a chilling effect on freedom of expression.

Mr Justice Tugendhat said the “abuse of process” principle, developed since 2005 [see HTFP 12.01.10], provided one tool for stopping weak claims but it was also necessary for courts to scrutinise carefully whether a publication was actually ‘defamatory’ – or sufficiently so to justify a costly libel action.

The judge noted that in a case in 1840, ‘defamatory’ was defined as “calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule”.

In 1934, a court had expanded this to include words which tend to make a person be “shunned or avoided”.

In 1936, the definition was updated by the addition of the following test: would the publication “tend to lower the claimant in the estimation of right-thinking members of society generally?”

This is the test that has been most commonly used by judges in recent years, but the earlier definition still survives and has not been wholly disapproved.

The court in 1936 said: “That juries should be free to award damages for injuries to reputation is one of the safeguards of liberty. But the protection is undermined when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character and are treated as actionable wrongs.”

Mr Justice Tugendhat said the original 1840 test had implicitly included a threshold of seriousness since “hatred” and “contempt” were very strong words, but the 1936 test had made it clearer still that a seriousness threshold was part of English libel law.

Having reviewed the cases and stated his own preferred definition of ‘defamatory’, the judge concluded: “Whatever definition of ‘defamatory’ is adopted, it must include a qualification or threshold of seriousness, so as to exclude trivial claims.”

What Tugendhat J. has done here is to give publishers another line of defence against weak libel claims by highlighting the “threshold of seriousness” in the test for what the law considers is ‘defamatory’.

His ruling might be fine-tuned in any appeal, but one senses the senior judiciary are also concerned about the relative ease – and debilitating costs – with which trivial libel claims have previously been litigated.

The higher courts are likely to support his new emphasis on “seriousness”, which will help filter out trivial claims.

Comments

Harold (02/07/2010 15:11:11)
It’s obvious definitions need redefining, but the basic principle should remain the same: Anyone who has had their reputation adversley affected deserves some sort of recompense. It should really become harder and harder for media organisations to defame someone. The check on the establishment is one thing. The check on an individual who does nothing illegal, except provoke the ire of an individual or media organisation, is something different. I suggest public interest is looked at again as well. What was public interest pre-internet/ computers is not the same know. Media bosses need checking like never before.