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Law Column: Serious harm – can libel be cumulative?

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In a recent High Court case (Sube v NGN Ltd and Express Newspapers); Mr Justice Warby considered whether the cumulative effect of multiple publications could constitute ‘serious harm’ for the purpose of s 1 of the Defamation Act 2013 (“the Act”).

Without telling our HTFP readers how to suck eggs, s 1 of the Act states: “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

As we all know, when the ‘serious harm’ threshold was introduced within the Act, there was a lot of discussion and uncertainty as to what would actually constitute ‘serious harm’ and how high a hurdle it would actually be.

To date, very few cases on the ‘serious harm’ threshold have actually been tested through the Courts. However, Mr Justice Warby’s recent (although not quite a surprising) decision is welcomed.

Back in the second half of 2016, Mr and Mrs Sube (a French couple with eight children) were in a dispute with Luton Council over the adequacy of housing being offered to them.

After giving an interview to a local paper there was an immediate backlash, with extensive national newspaper coverage of the couple’s criticism of the Council’s offer of a 4 bedroom house.

Some of the more ‘notable’ headlines were “Are they serious? First picture of four-bed that jobless couple with eight kids slammed council for offering” and “Shameless French family-of-10 demands MANSION: benefits dad rejects 5-bed as ‘too cramped’”.  The articles attracted what the judge referred to as “highly offensive” reader comments.

A claim was issued against the publishers of The Sun, The Mirror, The Daily Express and Daily Star for libel and harassment (although the Mirror claim settled early on).

On 14 May 2018, a preliminary trial on meaning took place where Mr Justice Warby decided that taken individually, none of the meanings of the separate articles were sufficient to meet the ‘serious harm’ threshold. Interestingly, the Judge invited the parties to make written submissions on whether ‘serious harm’ should in fact be applied to the cumulative effect of all of the articles. 

The question for the court, as the judge put it himself, was: “can an article be defamatory of a person, by reference to the statutory test, even though none of the imputations about that person which the article conveys is by itself defamatory, according to that test“?

The judge (and rightly so) decided the following:

  1. It could not be right for the court to consider the cumulative impact on reputation of all the imputations in all the articles complained of.
  2. If it was possible to consider articles collectively, the assessment could not be carried out across all the articles by different defendants. A distinction would have to be made between articles published by each defendant.
  3. In coming to its decision, the court could not take account of meanings it had found not to be defamatory in conjunction with those which had been upheld.
  4. The individual imputations against each claimant would need to be considered separately.

The judge noted that the wording of the Section 1 test refers to whether serious harm results, or is likely to result, from the “publication” of a “statement”. It does not refer to meaning or imputation.

In the judge’s view: “a statement is only defamatory of a person if, and to the extent that, it conveys an imputation about the person which tends to lower him or her in the opinion of right thinking people generally, and causes or is likely to cause harm to their reputation which is serious. The serious harm requirement cannot be satisfied by aggregating the injury to reputation caused by two or more less harmful imputations.”

The cumulative effect of articles could not therefore satisfy the serious harm test and rightly so. It cannot be that multiple newspapers can be assessed against other articles they may not have published, when the individual articles were not defamatory.

Although this won’t come as any surprise, it is a welcoming decision to see the Court’s coming to sensible and commercial conclusions.

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