ABSTRACT
Since the enactment of the Defamation Act 2013, a defamation claimant in England and Wales must demonstrate that publication of the allegedly defamatory statement ‘caused, or is likely to cause serious harm’. This requirement has, with minor modifications, been adopted in several Australian jurisdictions, and in Scotland. Its introduction is being considered in Ireland, and potentially re-considered in Northern Ireland. Future reforms of defamation laws in common law systems likely will at least consider the viability of such a test.
In Lachaux v Independent Print Ltd, the UK Supreme Court provided authoritative guidance on the core features of the serious harm test. But the contours of this novel test still are being teased out regularly in the High Court and Court of Appeal. The post-Lachaux body of litigation demonstrates that any consideration of serious harm must start, but cannot stop, with that decision.
This article considers the judicial interpretation and application of the serious harm test in light of what was decided in Lachaux. That survey allows us to answer the basic question of how, in practice, the test can be satisfied. It also provides the foundations for evaluating whether the test has realised the policy goals advanced by its proponents, both in England and Wales and further afield. Moreover, the regulation of strategic litigation against public participation (SLAPPs) has become a prominent issue across Western liberal democracies. Anti-SLAPP mechanisms and the serious harm test, at least impressionistically, are aimed at similar mischiefs.
Bogle, Stephen James and Lindsay, Bobby, How serious is the serious harm threshold? (March 22, 2024).
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