Clarification Of The ‘Serious Harm’ Requirement In Defamation Cases

Sivananthan v Vasikaran

Case background

Dr Sivanathan (Claimant) and Mr Vasikaran (Defendant) are both active members of the British Tamil Conservatives (BTC). The Claimant joined BTC in late 2009 and quickly became chair. Tensions between the Claimant and the Defendant first arose in 2016 over the running of BTC. In 2019, the Defendant became more vocal with his criticism and started making comments on a BTC Whatsapp Group.

The statements of particular concern to the Claimant were made by the Defendant in the Whatsapp Group in July and October 2019. A total of five statements were made, including:

The Claimant brought defamation proceedings against the Defendant. At trial, Mr Justice Collins Rice first analysed the wording and effect of Section 1(1) of the Defamation Act 2013 (DA 2013). Section 1(1) of the DA 2013 states a “statement is not defamatory unless its publication has or is likely to cause serious harm to the reputation of the claimant”.

Within his Particulars of Claim, the Claimant chose not to present any evidence from individual publishees on the impact of each publication when demonstrating serious harm. He considered that to do so would risk further embarrassment.

Mr Justice Collins Rice in his judgment clarified what needs to be shown by a claimant in relation to serious harm, namely:

The Claimant in his approach tried to demonstrate serious harm on a purely inferential basis choosing to present no evidence. Mr Justice Collins Rice made it clear within his judgment that:

The authorities on establishing serious harm by inference alone tend to feature mass-circulation publications, in such cases, it is difficult to evidence the individual impact of each publishee. This is not the case here, the Claimant admitted that the class of direct publishees was small. It therefore would have been possible to gather evidence directly from the individual publishes and, in not doing so, the Claimant placed himself in a position of evidential disadvantage.

In relation to causation, Mr Justice Collins Rice was critical of the fact that he was given no evidence by the Claimant to understand the separate impacts of each separate post. The Claimant had simply presented how he felt about the various statements. Mr Justice Collins Rice clarified that “libel law is concerned not with a claimant’s own response to or feelings about publications…but with their real and actual impact on the minds and opinions of other people. Other people cannot be inferred to feel what a claimant feels on his own account…” [emphasis added].

By virtue of the above, the Claimant was unsuccessful in his claim.

Comments

This judgment provides helpful clarification on the true meaning of ‘serious harm’ and what needs to be established by a claimant to be successful in a defamation claim. Most pertinently, claimants need to show that reputational damage has been caused in the minds of publishes and it is, therefore, essential to gather evidence from the individuals themselves. It is also imperative for a Claimant to show that there is a causal link between each of the statements complained of and the reputational damage caused.