We should begin by saying that defamation is a very complex area of law and it is best to seek advice if you think you have been subjected to a SLAPP under defamation law. However, we have set out below some of the basic principles of defamation law.

Often (although not always), SLAPP cases are initiated under the guise of defamation. The reason for this is multi-faceted, but in a report from The Foreign Policy Centre and ARTICLE 19, the UK is seen as being attractive for defamation claims for a number of reasons:

The enduring challenges for members of the media defending themselves against libel cases include the high costs involved, the burden of proof, linked to a single legal meaning (now decided by the judge), and the lengthy periods of time taken for legal proceedings to come to fruition. All of these aspects continued to make England an ‘ideal’ jurisdiction for claimants, perpetuating the phenomenon of ‘libel tourism’.

The Defamation Act 2013 is the key piece of defamation legislation. Pursuant to section 1(1) claimants are required to prove that the defamatory material has caused, or is likely to cause, serious harm to their reputation. For bodies that trade for profit, the serious harm requirement is qualified by section 1(2), in that to meet the serious harm threshold claimant’s need to demonstrate actual or likely serious financial loss.

When it comes to serious harm, each case is judged on its individual merits and so there is no set definition on what ‘serious harm’ looks like, but previous judgments have emphasised that numerous factors are considered, such as how widely the information has been disseminated and the fact that there is evidence that the statement has caused, or is likely to cause, harm.

Bogle and Lindsay (2024) summarised how serious harm has developed since the case of Lachaux v Independent Print Ltd. [2019] UKSC 27, [2020] AC 612. In particular, they examined the judgment of Turley v Unite the Union [2019] EWHC 3457 (QB) where Nicklin J summarised what was decided with regard to serious harm and came to the conclusion that there are six things we can learn with regard to the serious harm test:

1. 1. ‘The test requires more than relying on the mere tendency of a defamatory statement to cause damage. ‘To cause’ harm means considering the consequences of the publication and not, importantly, the mere publication itself.
   2. Section 1 of the 2013 Act requires the demonstration of facts that speak to the material impact of the statement complained of.
   3. Serious harm can be demonstrated by a combination of meaning; the subject’s position; the context; and the inherent probabilities.
   4. A grave allegation in of itself does not necessarily amount to serious harm: there may be no serious harm if such an allegation is circulated around a small number of people, none of whom believe it, or where there is no reputation to be protected.
   5. Rarely will the task be one of precision: it can only be done on what is brought before the court.
   6. The potential impact upon persons the claimant does not presently know, whom they may encounter in the future, may be considered.’ (p.421)

There are defences available for defamation under the Defamation Act 2013. These defences include: serious harm; truth; honest opinion; and publication on a matter of public interest. You can read more about the defences available by clicking here.

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