Sube v News Group Newspapers Ltd & Express Newspapers (No 2)

The Claimants (Cs) were a married couple with 8 children who were French and black. In 2016, they were in dispute with Luton Council about the adequacy of the housing which the Council had offered the family. Following a local newspaper article about the matter, there was extensive national newspaper coverage some of which was critical of the Cs including for allegedly rejecting a five bedroomed house offered by the Council as too small. The two Defendants had published a number of articles about the Cs in their respective newspapers and online – The Sun (D1) and the Express and the Daily Star (D2). The Cs issued proceedings in 2017 for libel, malicous falsehood,  harassment and data protection.

Following earlier determination by the Court of various preliminary issues in the libel claim including meaning (see Sube v News Group Newspapers Ltd & Express Newspapers [2018] EWHC 1234(QB) ), the Court  concluded that  none of the meanings considered individually were sufficiently harmful to the Claimants’ reputation to satisfy the serious harm requirement.   The Court left open the question of whether  whether distinct imputations within one statement that did not individually reach the serious harm threshold could be aggregated in order to cross the s.1 serious harm threshold.  (The Data Protection Claim was stayed and the malicious falsehood claim was struck out)

The Claimants indicated that they wished to argue this point and to have it determined. The Court directed written submissions on this issue and the parties agreed to have the matter determined on written submissions alone.

Whether  distinct imputations within one statement that did not individually reach the serious harm threshold in s.1  Defamation Act 2013 could be aggregated/relied on cumulatively in order to satisfy the serious harm threshold.

Held:

1. The serious harm requirement cannot be satisfied by aggregating the injury to reputation caused by two or more less harmful imputations. A statement is only defamatory of a person if it conveys an imputation about the person which tends to lower him/her in the opinion of right thinking people generally and causes or is likely to cause serious harm to their reputation: at paragraph [34].
2. A published article must be considered individually; it would not normally be appropriate or possible to treat a number of articles as a single ‘statement’ for the purpose of s.1: [22]. It also would not be right to permit a Claimant to rely against one publisher on matters published by another: [23].
3. It was unnecessary to decide whether there was a residual common law test – ie. whether the Claimants could not succeed unless they showed each of the imputations sought to be combine itself crossed the Thornton threshold of seriousness. However, the Court noted the obvious force of the argument that it would be wrong to interpret s.1 in such a way as to reduce the threshold of seriousness: [35].
4. The decisions in the case did not rest on the proposition that expressions of opinion cannot defame a person. A factor that may be relevant when considering the defamatory impact of an expression of opinion is the context in which it is made including whether it is a repetition of something said before by the same publisher: [41].

This is the first case to rule on the question: can individual imputations that are each not serious enough to meet the s.1 serious harm test be relied on together (cumulatively) to clear that hurdle? The answer provided by the Court was a definite no.

The Court noted the “general importance of the point of law” of this question. The Court rejected the submission that Lachaux  v Independent Print Ltd [2017] EWCA Civ 1334 was binding authority against the Claimants’ argument in favour of cumulative serious harm noting “a judgment is not to be treated as if it was a statute” . Interestingly, the Court also accepted that there was nothing illogical about a threshold test that involves an overall assessment of the harm caused by a published statement and that aggregation could lead to reputational harm well beyond the threshold. However, in the final analysis, the conclusion was that Parliament’s intention was to raise the threshold of seriousness for a defamation claim in enacted and the serious harm requirement could not be satisfied by aggregation.