In a judgment handed down today (click here to download) the Court of Appeal has defied Parliament by refusing to extend its intended additional protection for free speech. When Parliament passed the 2013 Defamation Act it made clear its intention to raise the bar for libel claimants to give greater emphasis to free speech. The common (Judge-made) law had already set a low threshold which claimants had to surmount which allowed judges to throw out trivial claims.
Parliament, however, wanted the bar raised significantly to bring the UK’s law of libel more into line with that of other countries such as the United States. The most significant element of the new act was the section 1 requirement for a claimant to prove that the publication had inflicted “serious harm” on their reputation.
In 2014 the claimant, a French national who was living and working overseas, had virtually no connection with the UK and had no intention of visiting the UK because he disliked the country featured in multiple British media titles regarding proceedings against his British ex-wife for allegedly ‘kidnapping’ their son. The articles reported allegations said to have been made against him by his ex-wife, including of domestic abuse.
The Huffington Post article which was the subject of todays decision was only one of a plethora of mainstream media articles about the ugly break-up of his marriage his decision to divorce his wife using Sharia law which did name him and carried much more lurid accounts of his wife’s allegations against him. Those stories were published to many millions of readers and are still online today.
By contrast the offending story was taken down by the Huffington Post at the Claimant’s request, which did not come in until seven months after the article was published, and replaced with a clarification and apology. The Claimant was unable to demonstrate either that he had suffered any adverse consequences from the publication whatsoever, or that more than one individual who actually knew him had read it. Despite this the first instance judge has upheld the claim.
This was therefore exactly the kind of weak claim which Parliament intended to exclude with its “serious harm” rule. The Judge had decided in a preliminary issue trial of the “serious harm” issue that the threshold had been passed that despite the claimant could demonstrate that he had in fact suffered no harm whatsoever from the publication. The Huffington Post appealed in the hope that the Court of Appeal would give effect to parliament’s will and strike out the claim.
Keystone Lawyer, Jonathan Coad was present during the Court of Appeal hearing and acted for Huffington Post/AOL commented:
“It was clear that the three Court of Appeal Judges disapproved of the first major intervention of Parliament into the law of defamation, and were determined to prioritise their own views about what the law should be over the expressed will of Parliament. This is a major set-back for free speech, and we will have to wait to see whether the Supreme Court steps in to ensure that the will of Parliament is not defied by the Courts in the future.”
Jonathan is available for further comment can be contacted via firstname.lastname@example.org or on 07714683052.
A full account of the action can be found in this article that he wrote for the Inforrm Media Law Blog: https://inforrm.wordpress.com/2016/02/06/lachaux-the-huffington-post-and-serious-harm-under-the-defamation-act-2013-jonathan-coad/