I was at the UK Supreme Court yesterday to hear the judgment in Lachaux v. Independent Print Ltd and another. It was a significant challenge to section 1 of the Defamation Act 2013, which long-term readers of this blog will recall was the (successful) end result of English PEN’s Libel Reform Campaign.
Section 1 of the law introduced a test of ‘serious harm’ before a claimant could sue. It was designed to expand the space for free speech by weeding out trivial claims.
A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
The Lachaux case hinged on the semantics of that section of the law. Do the words “has caused or is likely to cause” refer to real world effects, past or future? Or do they just mean that the words have a tendency to cause serious harm to reputation.
As Bishop Berkeley might have asked: If I call you a domestic abuser in a forest, and no-one hears, have I caused serious harm to your reputation?
The original judge in the case said that claimants have to produce real-world evidence of serious harm to reputation. But the Court of Appeal said that the tendency of the words to cause reputational harm was enough. So the Supreme Court had to weigh-in. The first interpretation allows far greater scope for freedom of expression. The second would have rolled back the law to pre-2013 standards.
Yesterday, the Supreme Court sided with free speech, and ruled that claimants do have to provide evidence of ‘serious harm’ to their reputation.
The Guardian’s Media Editor Jim Waterson was at the Court to report on the judgment, and I am quoted in his write-up.
Robert Sharp, a spokesman for English PEN – a writers’ association – and the Libel Reform Campaign, said: “The judgment vindicates our campaign for a rebalancing of the law in favour of freedom of expression.” The campaign urged the Scottish government to implement similar changes.
“All kinds of writers, from journalists to social media users, now have greater certainty over how the law will be interpreted, which is good for free speech.”
I also spoke to Mark Chandler at The Bookseller about the impact of the judgment on publishers:
English PEN advisor Robert Sharp said the ruling would “see off” trivial claims of the kind encountered by Jake Arnott’s 2006 novel Johnny Come Home. That book had to be withdrawn and pulped, with Hodder & Stoughton forced to pay “significant damages” because one of its fictional characters shared a name with real life musician Tony Rocco.
Sharp said publishers of investigative journalism, history and biography would particularly benefit from the ruling.
He said: “During the course of our libel reform campaign, book publishers told us that they would spend a lot of money on legal advice regarding defamation and the fear of trivial claims. It’s a real chill on free speech and a real chill on the publishing industry. This judgment really entrenches the new free speech protection and publishers will certainly benefit from that.”