The serious harm requirement under the Defamation Act, 2013 was introduced to ensure that only claims involving substantial reputational damage would proceed. The case of Blake & Anor v Fox [2024] illustrates the serious harm threshold and how it is applied.
This case involved a public dispute on X (formerly Twitter) between Laurence Fox, an actor and political activist, and the claimants Simon Blake and Colin Seymour. Fox publicly called them “paedophiles” after they accused him of being racist. Throughout this case, the courts provided further clarification on meeting the threshold for establishing serious harm.
Understanding the Serious Harm Threshold
Section 1(1) of the Defamation Act 2013 sets out that a defamatory statement must have caused or is likely to cause serious harm to the reputation of the claimant. In Lachaux v Independent Print Ltd [2019], the Supreme Court ruled that the serious harm test requires claimants to demonstrate actual damage to reputation, rather than relying on the defamatory nature of the statement alone. The claim must include the impact of the harm in the ‘real world’
This new standard shifted the focus of defamation claims from the assumption of harm based on the content of the statement to the actual consequences of the publication. In Blake & Anor v Fox, the court had to determine whether the public accusation of paedophilia had caused or was likely to cause serious harm to the reputations of the claimants.
Application of Serious Harm in Blake & Anor v Fox
The defamatory statements were made on X (formerly Twitter), a highly public forum, where Fox had a large following. His accusation of paedophilia was made in response to accusations of racism by the claimants. The judge was required to assess whether the serious harm threshold had been met for each claimant.
Blake and Seymour, both public figures with established reputations, had to provide evidence showing how the defamatory statement had caused substantial harm to their reputations. The court took several factors into account:
- Severity of the Allegation: Accusations of paedophilia are incredibly damaging, capable of causing severe reputational harm. The seriousness of the allegation was a key factor in the court’s decision.
- Amplification by Social Media: The court noted that Fox’s statement reached a wide audience, significantly increasing the potential for reputational damage. On social media, such statements may go viral, drastically increasing their impact.
- Pre-existing Reputation: The claimants were well-known for their involvement in LGBTQ+ advocacy, which made the defamatory statement particularly harmful in due to their public profiles.
- Abuse: The claimants also provided evidence of increased homophobic abuse following the defamatory posts, indicating that the statements had an impact on their reputations within their communities.
The court held that the accusation of paedophilia had caused serious harm to the reputations of Blake and Seymour, thus meeting the threshold for defamation under section 1(1).
Dismissal of Fox’s Counterclaim
In contrast, Fox’s own defamation counterclaim against Blake and Seymour relating to the allegations of racism was dismissed by the court. While allegations of racism were found to be defamatory, the court determined that Fox’s reputation had already previously been shaped by controversies and public statements on race. The court considered any additional harm caused by the claimants’ statements to be minimal and therefore did not meet the serious harm threshold.
Conclusion
Blake & Anor v Fox emphasises the importance of the serious harm test in defamation. By requiring claimants to provide evidence of reputational damage, it ensures that defamation claims are not pursued for insignificant matters. The court carefully considered the context, including the severity of the allegation, the audience, and any broader reputational impact, before concluding that serious harm had been established for Blake and Seymour, but not for Fox. This decision reaffirms the significance of the threshold for meeting serious harm, thereby balancing the protection of reputation with the preservation of free speech.
Contact Us
At Nath Solicitors, we specialise in online defamation law. If you need advice contact us on 0203 983 8278 or get in touch with the firm online.
