In a trial which took place in July 2015 Warby J found that the reputation of a foreign national living overseas had suffered “serious harm” as a result of the publication by the Huffington Post of a third party blog on its website about a marital dispute between the claimant and his ex-wife ( EWHC 2242 (QB)). By that decision the High Court elucidated some general principles about how section 1 of the Defamation Act 2013 should be applied in the preliminary stages of a defamation claim.
The purpose of the 2013 Act was to raise the bar for defamation claimants, and thereby afford greater protection for the right of free speech. One of the specific aims of the Act was to reduce the instances of overseas claimants with no genuine nexus with the UK making claims against UK-based publishers and broadcasters. Warby J’s decision concerning the claim made against UK publishers by a French citizen living in Dubai who has scant nexus with the UK suggests that the passing of the Act may not have brought the enhanced free-speech protection intended by Parliament.
Warby J interpreted the Act in a way which if followed would have the effect of restricting the powers of the courts to filter out defamation claims from overseas claimants that should neither take up court resources nor cause UK-based publishers to incur expense. He then refused the Huffington Post’s application for permission to appeal. But the opportunity for the appellate courts to have their say will arise later this year or early next year because the Huffington Post has now been granted permission to appeal to the Court of Appeal, which permission was granted at the initial written application stage.
Mr Lachaux is a French national living and working in Dubai where he has a home, as he also does in France and the USA. He married an English woman which caused him to visit London only briefly on a couple of occasions. He never lived here, never worked here, and never even worked for a UK-based company. There was little evidence that he had any intention of living here or working for a UK company; in fact there was compelling evidence that he disliked this country and was therefore likely to shun it. He lived in Dubai with his wife and the child of the marriage, and he worked in Dubai and the USA in aerospace engineering.
His marriage then broke down and the relationship soured. Both Mr Lachaux and his wife accused the other both of domestic abuse and of kidnapping their son. The (now) ex-wife alleged that Mr Lachaux had deployed sharia law (and its inherent bias against women) to obtain the divorce and secure custody of the young child of the marriage. She claimed that she had to flee Dubai after Mr Lachaux complained to the authorities that she had libelled him and of kidnapping their son, and she then initiated a public campaign to try to regain custody of her son which was then reported by numerous news outlets.
The first mainstream publication to do so was the Huffington Post, which it did by carrying a third-party blog post from a campaigner for human rights in the Middle East who described the plight of Mr Lachaux’s ex-wife as an example of the problems faced by Western women in countries where sharia law is applied. There followed dozens of media articles also reporting the allegations made by Mr Lachaux’s ex-wife against her husband and that she had not seen her son since fleeing Dubai, taking her as their source but otherwise unrelated to the Huffington Post blog post. These included articles in The Independent, i, the Evening Standard.
Mr Lachaux sued the publishers of The Independent, i, the Evening Standard as well as the Huffington Post. He complained about the publication of articles in the UK and Dubai containing allegations that he had abused his wife causing her to flee with their son, that he unlawfully seized his son back and that he falsely accused her of kidnapping the boy, causing her to be prosecuted for abduction. In the face of the claim letters which had been sent some seven months after the publications (despite claiming that Mr Lachaux’s reputation had been suffering serious harm from the date of publication), the publishers of the Fleet Street titles adopted different tactics from AOL, the publisher of the Huffington Post.
Shortly after receiving the claim letter the Huffington Post removed the offending blog post and replaced it with an apology and qualified correction with greater prominence than the offending publication – an apology which is still on the Huffington Post website. The three Fleet Street titles elected not to take their articles down but include mitigating material in the online versions. Unlike the Fleet Street titles the Huffington Post only publishes online.
Mr Lachaux is therefore suing the Huffington Post exclusively over an electronic publication where the number of publishees is both modest and ascertainable, where those publishees have increased because no complaint was made about the article for seven months, where the article has been taken down and is now accessible online only with the greatest of difficulty; where by contrast the other allegations were a mixture of print, electronic and broadcast and where the publishees are around one hundred times that of the Huffington Post article, and where the number of those publishees is likely to increase because the vast majority of those publications can still be accessed online.
In addition to the The Independent, i and the Evening Standard, some of the other publishers/broadcasters included the Daily Mail (which has 2,305,000 online daily users and 3,745,000 print edition daily readers), the Daily Telegraph (1,167,000 online daily users, 1,192,000 print edition daily readers), the Guardian (1,556,000 online daily users, 748,000 print edition daily readers), the Daily Mirror (862,000 online daily users, 2,281,000 print edition daily readers), the BBC (73.4 million global users in July 2014) and Sky.com (more than 2 million monthly unique users). Among the allegations made against Mr Lachaux in the Daily Mail publications were these:
- That his ex-wife had not attended a court hearing “because her former husband Bruno Lachaux, who was awarded custody of the boy in a Dubai court, had threatened to kill her at their last meeting”.
- That she had claimed he “snatched little Louis from his pushchair after he tracked her down to a shopping centre near her home … [and] She has not seen the boy since.”
- That she alleged that he “exploited Dubai’s legal system, based in part on Islamic Sharia law, to gain custody of the little boy and have criminal charges brought against her.”
- That she claimed that Mr Lachaux divorced her and sued for custody of the boy without her knowledge.
- That she claimed suffered domestic abuse and was threatened by Mr Lachaux.
The High Court dealt with the case’s various preliminary issues. The primary issue, which is the subject of this article, was whether the publications caused or were likely to cause “serious harm” to Mr Lachaux’s reputation under section 1(1) of the Act. The Claimant argued that the effect of section 1(1) was simply to raise the bar on the gravity of the allegation, i.e. the rule that a statement could be defamatory per se without the need to prove that harm had actually been caused. In the alternative, the Claimant argued that (1) serious harm could be inferred given the gravity and wide publication of the allegations and (2) nevertheless, he could point to at least one person that had read the allegations. The Defendants argued that evidence of harm was required and that the evidence must show that serious harm had actually been caused by the date of the determination.
It also fell to be decided whether a court, in deciding whether the serious harm threshold has been surmounted, is entitled to take account of other publications to the same or similar effect, i.e. the rule in Dingle. That rule says that where others publish words to the same effect as the actionable libel, a defendant cannot rely on other publications that had made the same allegations in mitigation of damages.
The High Court decision
The Defendants applied for a preliminary issue trial to determine whether the articles had inflicted serious harm on Mr Lachaux’s reputation, a hearing at which the defamatory meanings of the Huffington Post articles were also to be determined. The claimant sought an order that the Huffington Post be obliged to serve a defence before the preliminary issue trial which was resisted by the Huffington Post partly in order to permit it the option of serving an Offer of Amends should their article (at that stage the second proceedings had not been served) be found to have caused serious harm to the claimant. Warby J determined the “serious harm” issue in Mr Lachaux’s favour, and in so doing ruled that the rule in Dingle precluded him from taking account the impact of a plethora of other publications to the same effect.
Following the decision of Bean J (as he then was) in Cooke v MGN  EWHC 2831 (QB), Warby J concluded that proof by inference is possible where the allegations are particularly serious and widely published. However, Parliament intended courts to consider all the relevant circumstances, which must include what happened after the publication, and not just the defamatory meaning of the words in question. This appears to have been the determining factor in Warby J’s judgment, which was also undermined by a number of factual errors.
As for the rule in Dingle, Warby J held that it remained good law since the implementation both of the Human Rights Act and of the 2013 Act and went further to apply Dingle to a threshold assessment of whether a cause of action exists in the first place, rather than simply being a rule on the inadmissibility of other publications in assessing damages. The effect of this is that other publications that have published words to the same effect as the publication which is the subject of proceedings cannot be adduced as evidence for the purpose of defending a claim that serious harm has been inflicted on the reputation of the claimant just as the impact of other publications cannot be deployed by a defendant to limit the measure damages payable by that defendant.
The defendant publishers in this case argued that other publishers (such as the Mail Online, which has a massively greater readership than the defendants) had extensively and repeatedly published the same allegations while actually naming Mr Lachaux, but that Mr Lachaux had not sued those publishers. However, applying Dingle, Warby J refused to take into account the impact of the subsequent publications on Mr Lachaux’s reputation and held that those publications could not be relied on by the defendants to establish that the publications which were the subject of the action did not meet the serious harm threshold.
The Huffington Post applied to the Court of Appeal for permission to appeal on these grounds:
- The approach to Dingle was wrong and that a post-Human Rights Act 1998 judicial landscape should lead to a media defendant being able to rely on other publications of the same allegations.
- An unnecessarily high threshold was set for the publishers in saying that Mr Lachaux’s delays need only have had a negligible harmful effect. Warby J should have found that delay is relevant when it suggests that vindication was not “uppermost” in the claimant’s mind (Steedman v BBC  EMLR 17), which was the case here.
- Warby J should have asked whether Mr Lachaux had an existing reputation in the UK for the section 1(1) test to be met (and concluded that he did not).
- The evidence of Mr Lachaux’s ex-wife was not properly evaluated.
- There was no basis for concluding that its article had caused by the date of the hearing or was likely to cause serious harm to Mr Lachaux’s reputation (in light of the fact it was no longer available on the Huffington Post’s website).
- No distinction was made between the different publishers and different characteristics of each article.
- There were inconsistent inferences drawn as to the weight attached to the individual articles by Mr Lachaux.
Lord Justice Floyd gave these reasons for granting permission to appeal; “The application of the serious harm test as interpreted by the judge, and whether the rule in Associated Newspapers v Dingle applies in the light of Article 10 and the Defamation Act 2013 are important enough questions to amount to a compelling reason for hearing the appeals.” The appeal has now been listed for two days to float between 28 and 29 November 2016.
Jonathan Coad as a partner in the Media Brands and Technology Department of Lewis Silkin LLP which represents AOL (UK) Ltd, the publishers of the Huffington Post.