Defamation – serious harm threshold cannot be met by cumulative impact of allegations

The High Court has for the first time ruled on whether the impact of cumulative allegations against an individual can overcome the ‘serious harm’ threshold for defamation claims, when the individual allegations by themselves do not.

The Defamation Act 2013 introduced a ‘serious harm’ threshold which must be overcome for a defamation claim to be brought. In other words trivial claims of insufficient seriousness are not actionable. Individuals and bodies which do not trade for profit (for example charities) must show that the publication of the statement complained of ‘has caused or is likely to cause serious harm to the reputation of the claimant’ (section 1(1)). Where a company or other body trades for profit, as most businesses do, they will not overcome the threshold unless they can show that publication ‘has caused or is likely to cause the body serious financial loss.’

The case involves two claimants, Mr and Mrs Sube, who are a married couple with 8 children. They are suing the publishers of the Sun, the Daily Express and the Daily Star over articles about them which criticised them for rejecting a 5-bedroom council house for their family, and their actions and comments in relation to claiming benefits. The articles in large part consisted of quotes from Mr Sube himself.

At an earlier hearing the judge determined the meanings the articles bore, including that they were ‘milking’ the system, taking advantage of the welfare system, and were behaving arrogantly, unreasonably and greedily. He found that none of the factual imputations in the article were defamatory at all, and that the meanings he found, which were statements of opinion, whilst defamatory, did not cross the serious harm threshold. Whilst some might think worse of the claimants, the allegations would not cause serious harm to their reputations in the eyes of right-thinking members of society generally. He left open the question of whether the allegations could nonetheless cumulatively cross the threshold and decided this at a later date.

The judge came to the conclusion that, as a matter of law, it cannot be argued that the cumulative effect of a number of allegations is greater than their individual effect, such that the serious harm threshold is now overcome.

The law of defamation operates in relation to each distinct meaning or imputation the publication is found to bear. It is not possible to overcome the serious harm threshold by aggregating two or more less harmful imputations. This is an interesting decision which clarifies the law in this respect.