The Requirement for Claimants in Defamation Proceedings to show that their Reputation Suffered, or is Likely to Suffer, Serious Harm Emphasised by the High Court.

In Sobrinho v Impresa Publishing SA the High Court was asked to determine whether a Portuguese banker, living in Switzerland, was able to bring a claim for defamation against a Portuguese newspaper which had made certain allegations regarding the claimant’s role in the failure of a Portuguese bank. Although not resident in the UK, the claimant was chairman of a UK based charity and had business relations in the UK.

Section 1(1) of the Defamation Act 2013 reads as follows:

A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

The court confirmed that mere injured feelings would not amount to ‘serious’ reputational damage and that this issue must be determined before a defamation claim could continue. The court took a number of factors into account when considering whether the claimant had satisfied this requirement:

Circulation and Readership of the publication

The newspaper had a hardcopy circulation of the relevant edition totalling 136 in England and Wales, 52 digital subscriptions and could be accessed through a particular business information and research service. The court calculated that a total of 33 people had read the entire article.

It was confirmed that whether serious harm had been caused, or was likely to be caused, was not simply a matter to be decided by numbers. Due to the small circulation, however, the court ruled that no inferences in favour of the claimant could be drawn from the circulation alone.

Vindication of the Claimant’s Reputation in Portugal

The court noted that the Claimant had previously brought a libel claim against the same publisher in Portugal, but dropped his claim following a Portuguese Parliamentary investigation into the bank collapse, during which he was able to deliver his side of the story to the public.

The claimant noted that the investigation was widely reported in Portugal and this provided his opportunity to set the record straight, rendering the libel claim in Portugal redundant. The claim in the UK was continued as the Claimant alleged that there was ‘very little if any’ coverage of the investigation in the UK.

The court concluded that the Claimant had not suffered, nor was likely to suffer, serious reputational damage due to the publication of the article in question. This was due to the relatively small circulation and the fact that the coverage of the Portuguese Government’s investigation was just as easily accessible in the UK as the disputed article. For these reasons they court ruled that it would be a waste of time and effort for the claimant to take the case any further.  

The decision provides a practical example of the ‘serious harm’ test a claimant must satisfy before the attention shifts to the defendant following the 2013 reforms. The courts will scrutinse the effect of the publication in order to determine whether there is a possible claim, including all the surrounding circumstances.  

As this case shows, the 2013 act has made pursuing defamation claims much more difficult for claimants. Specialist legal advice should be sought as early as possible in order to analyse the claim, and ensure the best possible chance of satisfying the ‘serious harm’ hurdle.

Written by Guest Blogger Jonothan Scollen

Published February 9, 2016

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