Libel Reform Campaign welcomes Supreme Court Judgment on 'serious harm' in Lachaux

The judgment “expands the space for freedom of expression”
It “gives greater certainty to all kinds of writers” over how the law will be interpreted.
The same reforms to the law must now be enacted in Scotland and Northern Ireland

The Libel Reform Campaign, which campaigned successfully for the ’serious harm’ test in defamation, welcomes the judgment in Lachaux v Independent Print Ltd and another, which was handed down today 12 June 2019 at the United Kingdom Supreme Court.

The case concerned the interpretation of section 1 of the Defamation Act 2013, which places a ‘serious harm’ test on libel cases brought in England & Wales. When the measure was being debated in 2012, parliamentarians stated that the section 1 test was intended to ‘raise the bar’ to bringing a libel case to court, in the hope of reducing libel bullying and to prevent trivial cases from coming to court.

The Lachaux case tested the proper interpretation of the law. The judgment stated that ‘serious harm’ was not to be simply inferred by a judge on the potential harm of the words published, but that a claimant would have to show that their reputation had already sustained ‘serious’ harm in the real world.

Delivering the unanimous judgment, Lord Sumption said that section 1 of the Defamation Act 2013 “requires its application to be determined by reference to actual fact about its impact and not just the meaning of the words.”

Commenting, Sile Lane, Head of international campaigns and policy, Sense About Science, said:

The Libel reform Campaign was made up of hundreds of organisations and thousands of scientists, bloggers, and ordinary citizens who wanted a law to reduce the bullying and chilling impact on discussions about medicines, local issues, scientific research and consumer safety.

We all hoped the serious harm test would do that, and we are glad the Supreme Court agreed today that claimants should have to show actual harm before they are allowed to continue with a libel case.

Antonia Byatt, Director of English PEN said:

Although the judgement has gone against Independent Print Ltd, we welcome the Supreme Court’s interpretation of section 1. It vindicates our decade-long campaign for a fundamental change to the libel laws. It acknowledges the way in which twenty-first century technologies have changed the nature of publishing, and gives greater certainty to all kinds of writers, including bloggers and social media users, about how the libel laws will be interpreted.

This judgment expands the space for freedom of expression, but will also encourage responsible and responsive journalism. If a media outlet does make a mistake, then this judgment gives them a strong incentive to correct it quickly and prominently.

In recent years, reports on the law of defamation have been published by the Northern Ireland Executive (2016) and the Scottish Law Commission (2017). Both reports included draft bills that included a ‘serious harm’ test similar to s.1 of the Defamation Act 2013.

Nik Williams, project manager for Scottish PEN, said:

Now that section 1 of the Defamation Act 2013 has been tested at the UK Supreme Court, we urge the Scottish Government to commit to a robust and meaningful serious harm threshold to dissuade vexatious claims and those brought to silence legitimate criticism, as part of the ongoing reform process.

While we await the government's response to the public consultation on defamation reform and the Defamation and Malicious Publications (Scotland) Bill, we hope they take note of this ruling and commit to significant free expression protections in any reform that comes before Scottish Parliament.

Contact

Robert Sharp, Policy Advisor, English PEN, 07790420011
Sile Lane, Head of International Campaigns and Policy, Sense About Science 07719 391814
Nik Williams, Scottish PEN 07955 370992

Notes

Lachaux (Respondent) v Independent Print Ltd and another (Appellants) at the United Kingdom Supreme Court [2019] UKSC 27. Full judgment and press summary: https://www.supremecourt.uk/cases/uksc-2017-0175.html
The Libel Reform Campaign was launched in 2009 by English PEN, Sense About Science and Index on Censorship to demand a change to the UK’s out-dated libel laws. Over 60,000 people and more than 100 civil society organisations signed the Libel Reform Campaign petition calling for reform. Pledges to reform the law were present in all three major political party manifestos in 2010, and the Conservative-Liberal Democrat coalition government brought forward legislation in 2012.
The Defamation Act received Royal Assent on 23 April 2013 and was ‘commenced’ on 1 January 2014. The new law included: the ‘serious harm’ test; a public interest defence; measures to protect ISPs, operators of websites, and booksellers; qualified privilege for peer reviewed academic papers and citation of official reports; and measures to prevent ‘libel tourism.’ http://www.legislation.gov.uk/ukpga/2013/26/contents/enacted
The Libel Reform Campaign is now run by English PEN, Scottish PEN and Sense About Science, and is campaigning for reform of the laws of defamation in Scotland and Northern Ireland.
“The section raises the bar for bringing a claim” – This phrase was used in the Explanatory Notes to the Defamation Act 2013. See http://www.legislation.gov.uk/ukpga/2013/26/notes/division/5/1