The preliminary issues agreed by the parties in Cooke v MGN ( EMLR 31) and directed by the Master, which came before Bean J, envisaged two issues being determined sequentially: (1) whether the words complained of bore the meanings alleged by the Claimants or any other meaning that (subject to serious harm) was defamatory of them and, if so, what meaning; and (2) whether the publication of those words had caused or were likely to cause serious harm to the Claimants’ reputations within the meaning of section 1.
This would have involved the judge firstly applying the objective test to deciding whether the words were defamatory at common law before then deciding whether the case passed the statutory test of serious harm. This would seem to be a sensible approach, as it leaves the objective test intact, at least at the first stage. At the second stage, the court could consider whether the defamatory allegation is too trivial or the extent of publication only minimal and adjust the outcome accordingly so as to incorporate into the question of whether a cause of action is disclosed both Tugendhat J’s threshold of seriousness and whether its pursuit would be an abuse process as explained in Jameel.
However, Bean J did not determine the two questions in this way, although this did not become apparent until after the publication of his written judgment. In his judgment, he decided the meaning of the words at , applying the test of the hypothetical reasonable reader, but he did not answer the first question as to whether, in this meaning, the words were defamatory at common law. At a hearing after the publication of his judgment the Judge clarified in oral remarks that he had made no determination and, in fact, had formed no view, as to whether, in the meaning he found, the words were defamatory at common law. He said that his judgment simply answered one question, namely, whether the publication of the words met the section 1(1) test.
In reaching his conclusion that section 1(1) was not met, the Judge placed emphasis upon the apology. This too is a problematic feature of Cooke. If the cause of action still accrues upon publication of the words, an apology published in a later issue of the newspaper cannot contribute to the question of whether there was an actionable defamation as at the date of the cause of action accruing. The apology can mitigate the damage if a good cause of action existed upon publication, but it cannot have the retrospective effect of making the publication of words not a cause of action.
The potential mitigating effects of an apology have been considered on numerous occasions by the courts in the offer of amends cases. Under the Defamation Act 1996 an offer of amends is an offer package comprising an apology, compensation and costs communicated to a claimant before service of Defence. In none of the cases that have gone forward to a hearing to determine the compensation payable has a judge ever treated that package as a whole as achieving greater than a 50% mitigation of the damages that would otherwise be awarded at trial. However, in Cooke, the judge took the view that any harm from the publication had been eradicated by the subsequent apology.
It is difficult not to conclude that section 1, whilst its aim seemed clear and workable during the passage of the Bill, has left the law on this subject in a state of such uncertainty that it requires the urgent attention of the appeal courts. Even then, it will need strong judicial leadership to find a satisfactory path through this thicket and to ensure that the article 8 rights of individuals are still adequately weighed in the balance. Above all, there is the very real risk that, by an early focus upon whether publication has brought about harm that is actual rather than in the abstract, many cases which have traditionally qualified for the right to seek public vindication through a defamation action will fall at the first hurdle. The difficulties of demonstrating actual damage are, as Warby J said in Ames, well known to practitioners in this field. It is also worth recalling the words of Lord Atkin in Ley v Hamilton (1935) 153 LT 384 at 386:
It is precisely because the real damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach…
It may be thought by some that, if the dicta of Bean J takes hold and claimants are required to adduce evidence of actual harm save where the very gravest of allegations have been published in a large circulation national newspaper, this will be good for freedom of expression. However, on the principle of ‘be careful what you wish for’, it may not serve freedom of expression if the test of defamatory is in future to be determined by reference to the reaction of the twitter troll rather than the hypothetical reasonable reader. It may let in claims that have caused the appearance of serious harm based upon the actual but wholly unreasonable reactions of some readers looking for the opportunity to attract attention or vent prejudices via social media. If so, defendants may find themselves having to defend cases and compensate claimants in actions, and for damage, that, under the common law approach, would not have survived the objective appraisal of the court. The rigorously objective approach of the common law to deciding the meaning of words and whether they are defamatory is itself a safeguard against the abuse of defamation proceedings to chill free speech.
Another possibility is that, if the application of section 1(1) sets the hurdle so high that many potential claimants are deterred from risking resort to defamation claims to vindicate their rights, it may increase creative resort to other causes of action less well developed than defamation to protect free speech rights.
A recent example involved the tort in Wilkinson v Downton  2 QB 57, which was successfully relied upon in the Court of Appeal in OPO v MLA  EWCA Civ 1277 (currently awaiting judgment on the Defendants’ appeal to the Supreme Court). That was not a case involving any alleged defamation but a claim by a child to restrain publication by his father of an autobiographical work on the ground that, if the child obtained access to the material, it would cause him psychological harm. The decision of the Court of Appeal to grant an interim restraining order involved no weighing in the balance of the article 10 rights of the father, the publisher and the public and the court did not recognise either truth or public interest as arguable justifications for the father’s publication vis-a-vis his child.
If the Court of Appeal’s decision is upheld, it could open the way to Wilkinson v Downton being relied upon as a cause of action capable of supporting an interim application to prevent publication of an intentionally highly defamatory story proposed to be published in a newspaper article or television documentary. There may very well be circumstances in which a claimant could adduce convincing evidence that publication and the ensuing media attention would be likely to cause the claimant or a close family member psychological illness or result in a child of the family being severely harmed by bullying at school. By this route the rule in Bonnard v Perryman  2 Ch 269, which gives high protection to freedom of expression against prior restraint, could be bypassed.
Adrienne Page QC is a leading specialist silk whose practice covers defamation, malicious falsehood, privacy, confidence, harassment by speech and media law issues.