The Defamation Act 2013 (“DA 2013) reformed English law on defamation with issues surrounding freedom of expression and protecting a person’s, or a company’s, reputation. Section 1 DA 2013 states that “a statement is not defamatory unless its publication has caused, or is likely to cause serious harm to the reputation” of the person, or has caused, or is likely to cause serious harm by causing, or is likely to cause, serious financial loss. This is known as the “serious harm” test which must be present if a claim in defamation is to succeed.
There is current disagreement as to how “is likely to” was intended to be used with some judges having the opinion that “a tendency or likelihood is sufficient”, others consider that “more likely than not” is appropriate, whilst “less than “more likely than not”” is considered the correct balance when deciding the meaning of “likely”. Although similar, there are nuances in the definitions which can make a difference when deciding whether a claim has merit.
In November 2018, the Supreme Court will be hearing Lachaux (Respondent) v Independent Print Limited and another (Appellants)[UKSC 2017/0175] with regards to the proper interpretation of the “serious harm” test mentioned above, and the circumstance surrounding claims in which serious harm has to be inferred as there is an absence of evidence of harm. In other words, the Supreme Court will consider the true meaning of “is likely to” cause harm.