The study “Serious harm: six lessons since Lachaux” by Stephen Bogle and Bobby Lindsay from University of Glasgow looked at the concept of “serious harm”, as defined in the law through the case of the UK Supreme Court trial Lachaux v Independent Print, for example on how and if it impacts SLAPPs (see below). 

In England and Wales, to succeed in a defamation case, the claimant must prove that the allegedly defaming statement caused, or is likely to cause, serious harm. This has been adopted also in Scotland and Australia, and proposed in Ireland. The Defamation law was introduced in 2013.

Lachaux v Independent Print Ltd was in June 2019 and ruled that the claimants must prove a serious harm through actual facts, rather than just the inherent tendency of their words. The case involved a real estate developer whose contentious divorce was handled in the press. Although the court raised the threshold of proof for further cases, they did in this case rule in favor of Lachaux, that serious harm had indeed been caused.

The authors investigated every subsequent case referencing Lachaux or dealing with slander or serious harm. A total of 89 court cases were thus analyzed. In 58.4% of cases, serious harm was proved, while in 40.5% of cases this hurdle was not crossed. 

The numbers do not differ significantly from pre-Lachaux cases as studied by Sewell (2020): 43.2% of cases passed the serious harm threshold; 31.8% of statements failed the threshold, 6.8% of cases involved a mixed determination.

When it comes to Strategic Lawsuits Against Public Participation (SLAPPs), the authors note that the hurdle of “serious harm” is not enough to deter SLAPPs. Hence, it should not be framed as a device capable of dealing with SLAPPs, although the Scottish Government has indeed done so. 

In conclusion, the authors suggest that in practice, the serious harm test is more substantial than just a preliminary point. Since the issue of serious harm is complex and often handled in a full trial, the effect has been that the costs for both parties involved have increased. Proving serious harm also requires diligent preparation by the claimant.

The article  “Serious harm: six lessons since Lachaux” by Stephen Bogle and Bobby Lindsay is in Media Law.

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