More Serious Harm than Good? An Empirical Observation and Analysis of the Effects of the Serious Harm Requirement in Section 1(1) of the Defamation Act 2013

86 Pages Posted: 31 Oct 2019 Last revised: 7 Apr 2020

Date Written: August 15, 2019

Abstract

This thesis empirically investigates the extent to which section 1(1) of the Defamation Act 2013 has transformed defamation law, seeking to uncover the most appropriate construction of the serious reputational harm threshold and analysing consequent shifts in the balance between freedom of expression and the protection of reputation. To this pursuit, each judgment determining serious harm has been carefully examined with a qualitative analysis approach, with prominent themes and factors extracted and discussed. Subsequently, this analysis pursues the evolution of judicial opinion in the construction of section 1(1) and exhibits the merits of a multi-circumstantial approach in assessing the existence or likelihood of serious reputational harm, in line with the recent Supreme Court Lachaux judgment. Thus, although there are ongoing difficulties with costs, uncertainty and the role of inferences, the prevailing interpretation of the serious harm test represents a constructive development in safeguarding free speech as well as reputation.

Keywords: defamation, libel, Defamation Act 2013, serious harm, reputational harm, reputation, media law, freedom of expression, protection of reputation

Suggested Citation

Sewell, Charlie, More Serious Harm than Good? An Empirical Observation and Analysis of the Effects of the Serious Harm Requirement in Section 1(1) of the Defamation Act 2013 (August 15, 2019). Available at SSRN: https://ssrn.com/abstract=3473183 or http://dx.doi.org/10.2139/ssrn.3473183

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