Cumulative impact of news articles will not suffice for 'serious harm' defamation test, High Court judge rules

Claimants suing for defamation cannot meet the “serious harm” requirement by arguing that two or more less harmful publications had had a cumulative impact on their reputations, a High Court judge has held.

The declaration came from Mr Justice Warby in another stage of the litigation launched by Arnold and Jean Mballe Sube against News Group Newspapers, publisher of The Sun, and Express Newspapers, publisher of the Express and Daily Star newspapers, over a total of 22 articles about them which were published between September 7 and November 1, 2016.

The couple have claimed they were libelled in the articles.

An issue arose as to whether the “serious harm” requirement in section 1 of the Defamation Act 2013 could be met by taking the cumulative effect of statements in the articles, as opposed to the individual statements themselves.

At an earlier interim hearing, the court had held that none of the meanings complained of was a defamatory factual imputation about the claimants.

It held that the articles contained or implied derogatory comments about the claimants which satisfied the “consensus” requirement, namely that the statements complained of would impute some conduct or quality that would seriously harm the claimant’s reputation in the eyes of “right-thinking members of society generally… or reasonable people generally”.

But none of those comments or opinions was, taken individually, sufficiently harmful to their reputations to satisfy the “serious harm” requirement in section 1 of the Act, the court had said.

The claimant then argued that a single publication might convey separate and distinct defamatory meanings which were capable of having a cumulative impact which went beyond their effect if each was taken individually.

The defendants cited the Court of Appeal decision in Lachaux v Independent Print Ltd ([2017] EWCA Civ 1334) that section 1 of the act did not allow a claimant to combine non-defamatory imputations to make a statement defamatory.

Mr Justice Wary said it “could not be right” for the Court to consider the cumulative impact on reputation of all the imputations in all the articles complained of, adding: “That is contrary to established principle, and at odds with the wording of the 2013 Act.”

In general, for the purposes of assessing defamatory impact, a published article had to be considered individually – it would not normally be appropriate or possible to treat a number of articles as a single “statement” for the purpose of section 1, any more than it was at common law.

While it might be possible, depending on the circumstances, to take account of one or more previous articles as part of the context in which a given statement was published, it was hard to see how the defamatory impact of one publication could be affected by the defamatory impact of a separate, later publication.

In addition, a distinction had to be made between the articles published by News Group Newspapers and those published by Express Newspapers.

“It clearly could not be right to consider the articles all collectively,” the judge said.

Mr Justice Warby added: “In my judgment, in the modern law of defamation, a statement is only defamatory of a person if, and to the extent that, it conveys an imputation about the person which tends to lower him or her in the opinion of right thinking people generally, and causes or is likely to cause harm to their reputation which is serious.

“The serious harm requirement cannot be satisfied by aggregating the injury to reputation caused by two or more less harmful imputations.”

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