Cooke v MGN Ltd [2014] EWHC 2831 (QB)

Key point

  • This case laid down several points of interpretation of ‘serious harm’ in section 1(1) of the Defamation Act 2013, which includes:
    • showing serious distress or injury to feelings is not enough
    • ‘serious harm’ is a higher threshold than ‘substantial harm’
    • in some cases serious harm may be plain from the words of the publication and no further evidence is required to prove serious harm
    • a public and accessible apology can effectively eliminate serious harm

Facts

  • The defendants published an article about landlords making significant benefits from letting sub-standard properties to tenants
  • The claimants were a housing association and were mentioned in the article
  • An online version of the article was published but was subsequently deleted
  • The defendants published an apology later

Issue

  • Whether the claimants had suffered or were likely to suffer serious harm to their reputation under section 1(1) of the Defamation Act 2013

Held (High Court, Queen’s Bench Division)

Claim dismissed; the requirement of serious harm was not satisfied

Bean J

Interpretation of ‘serious harm’ under section 1(1)

  • “It is not enough to show that the publication has caused or is likely to cause serious distress or injury to feelings”: [30]
  • The date on which the harm the words ‘has caused or is likely to cause’ is to be assessed is the date the claim is issued: [32]
  • “likely” serious harm will, generally, only be established where the court is satisfied that it is more probable than not that it will occur in the future: [33]
  • ‘It is obvious, without the necessity of referring to Hansard, that “serious harm” involves a higher threshold than “substantial harm” would have done; and also that as the Explanatory Notes put it, it “raises the bar” over which a claimant must jump’: [37]
  • The defence sought to bring in evidence that the Minister of State in charge of the Bill said that ““Our view is that the serious harm test would raise the bar to a modest extent above the requirement of the current law.” – this was rejected as it would “allow legislation by speech”: [38] – [39]

Requirement of evidence

  • “I do not accept that in every case evidence will be required to satisfy the serious harm test. Some statements are so obviously likely to cause serious harm to a person’s reputation that this likelihood can be inferred.”: [43]
  • An example was given of a “national newspaper with a large circulation wrongly accuses someone of being a terrorist or a paedophile” – in such a case the likelihood of serious harm is “plain” and a commissioned survey or online comments would take the matter no further. But the article in the present case does not come “anywhere near that type of case”: [43]

Effect of apology

  • “In assessing the likelihood of serious harm being caused to the claimants’ reputation in the present case I attach significance to the apology. I have already held that the apology was sufficient to eradicate or at least minimise any unfavourable impression created by the original article in the mind of the hypothetical reasonable reader who read both. That leaves a residual class of readers of the original article who did not read the apology. As for them, it is important to note that the apology is now far more accessible on internet searches than the original Article. Mr Price observes, and I agree, that “only somebody actively trying to find the unamended Article may come across it, if they try hard enough. But there is no reason for anyone to do so other than for the purposes of this claim”: [44]

Commentary

  • It remains unclear as to what evidence would be sufficient to prove serious harm or the likelihood of it, especially considering that a court would be satisfied with a prompt and accessible apology as shown in this case