Who’d be a Whistle Blower?
In the recent case of BRUNO LACHAUX v INDEPENDENT PRINT LTD : BRUNO LACHAUX v EVENING STANDARD LTD : BRUNO LACHAUX v AOL (UK) LTD  EWHC 2242 (QB), Justice Warby sitting in the High Court of Justice considered the meaning of the Defamation Act 2013 s.1(1), and confirmed that libel is no longer actionable without proof of damage. Where “serious harm” is found, the subsequent damage to reputation cannot be merely presumed but must be properly proven.
The claimant was a French national who lived in the United Arab Emirates. News articles were published in Dubai and the UK which contained accounts of events in the UAE including proceedings against the claimant's former wife for "kidnapping" the couple's son and allegations against the claimant of domestic abuse.
Where a preliminary issue of serious harm is being heard, the claimant may be cross-examined and there will be no requirement for a Defence to be served. This places a real early burden on claimants wishing to bring claims to the Court.
The preliminary issues were (i) the extent to which the words complained of were understood to refer to the claimant and the natural and ordinary meaning of those words; (ii) whether the publications had caused or were likely to cause sufficient harm to the claimant's reputation, within the meaning of the Defamation Act 2013 s.1(1), to justify bringing the claims; and (iii) whether the pursuit of the claims against one of the defendants constituted an abuse of process pursuant to the principles established in Jameel v Dow Jones & Co Inc  EWCA Civ 75,  Q.B. 946.
It was held that a meaning was defamatory if it substantially affected in an adverse manner the attitude of other people, or had a tendency to do so. In enacting the Defamation Act 2013 s.1(1), Parliament had intended that libel claimants should have to prove as a fact on the balance of probabilities that serious reputational harm had been caused by, or was likely to result from, the publication complained of. The court was entitled to have regard to all the relevant circumstances, including evidence of what actually happened after publication. Libel was no longer actionable without proof of damage, and the legal presumption of damage would cease to play any significant role.
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