The result of section 1 of the Defamation Act 2013 is that a claimant in a defamation case must now establish that a publication “has caused or is likely to cause” serious harm to his or her reputation. A common law damage was presumed and the proof of the existence of serious harm is potentially a difficult hurdle for a claimant to overcome. The standard defendant response to a letter before action now usually involves a demand that the claimant identifies evidence of serious harm.
The case law gives little guidance as to how serious harm might be proved. One possibility is to look at the online impact of a publication. The technology company Digitalis Reputation, of which I am the CEO, has launched a product which provides summary qualitative and quantitative data quickly and to assist in the making (or indeed in defending) of defamation claims.
The Serious Harm Report automatically trawls information from search engines and the internet at large to acquire whatever data might be available in terms of the audience achieved by a particular publication and the extent of republication. It also trawls comments made on or in relation to the publication which assists in an assessment of whether and to what extent the claimant’s reputation has been damaged.
The primary applications of the Report are:
- The Quantitative: Achieving credible, citable, quantitative statistics to demonstrate reach where defamatory content is published on a peculiar blog rather than a recognised news title and
- The Qualitative: Pulling together all the sources which might provide quantitative value in terms of how something published on a more mainstream title may have been interpreted.
The content of such a report could, potentially, form part of expert witness evidence on reputational damage.
The question as to whether and to what extent such information is admissible in support of a claim that serious harm has been caused is a matter which will have to be explored in the cases. Nevertheless, such a report provides real, reliable data gleaned online which can provide objective evidence as to the impact of a particular publication and can inform the view of clients and advisers in assessing potential claims.
Once the initial impact has been assessed, Digitalis’s technology can be used periodically thereafter to measure change to audience and exposure.
Full details of the “Serious Harm Report” can be obtained from Digitalis Reputation.
Dave King is the CEO of Digitalis Reputation