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Harm

A recent evolution of defamation law has been adoption of a threshold of harm.  In New Zealand, the current position rests on delicate case law, but nevertheless appears to be that a plaintiff must establish, in addition to the elements of publication, identification and defamatory meaning, that the statement sued upon has caused at least a modicum of harm to their reputation.

The essentials

How was harm previously treated?
Until only the last 15 years or so, the law robustly applied the ‘presumption of harm’, by which the Court would presume as a matter of law, that upon the plaintiff’s establishment of the three principal elements, the plaintiff will have suffered harm to their reputation.  Recall from our discussion of defamatory meaning, when considering that issue the Court’s focus is to determine whether an alleged meaning tends to lower the plaintiff in the estimation of right-thinking persons generally.  Under the presumption of harm, the establishment of a meaning with a defamatory tendency would activate the presumption.  So classically, the focus was not whether the plaintiff’s reputation actually suffered, only whether the statement was of a character inherently detrimental to the plaintiff’s reputation.

The rationale for the presumption of harm was to address the evidential difficulties a plaintiff would encounter by having to call witnesses to confirm that their estimation of the plaintiff was lowered as a result of a particular statement.

But this is no longer the case?
No.  The law has witnessed a sea change over the last couple of decades.  Since 2005, English courts have permitted defendants to seek to rebut the presumption of harm at an early stage of the proceeding.  A defendant could do so by showing that the publication, even if it bore a defamatory tendency, could be safely regarded as having caused negligible harm to the plaintiff’s reputation.  This might arise if the defendant could prove that only a very limited audience received the publication, thus making it untenable that the plaintiff’s reputation had suffered beyond a trivial degree.  If such cases, the Court would strike out the plaintiff’s claim on the basis that the costs and time involved in the plaintiff taking the matter to trial would be disproportionate to the degree of vindication the plaintiff could hope to achieve even if successful.  This development has come to to be known as the ‘Jameel principle’.

The metaphor used was whether “the game was worth the candle”.  A helpful lens through which the Jameel principle may be assessed is whether a “real and substantial tort” has been committed by the publication of the statement.  

Around the same time as the Jameel principle was taking root, English courts also began scrutinising the degree of seriousness inherent in an allegedly defamatory statement.  This development approached the issue of harm from a different angle.  Sharper focus was brought to bear on whether a statement in fact tended to cause reputational harm.  Allegations about minor breaches of professional ethics, for instance, might not in fact have the defamatory tendency that was previously assumed.  In turn, where no defamatory tendency of a statement could be established, so it would follow that no presumption of harm would arise.

These twin-track developments led to the enactment of groundbreaking legislation in England, which has raised the bar further still.  Now, a plaintiff must establish that, in order for a statement to be defamatory, it has caused “serious harm” to their reputation or is likely to do so in the future.  Moreover, harm must be established from actual facts about the statement’s impact, nor merely the meaning of the words.

What's the current position in New Zealand?
Some reasonably distilled principles, but still a bit messy. 

First the clearer stuff.  In 2016, New Zealand courts began adopting the Jameel principle.  It is now clearly open to a defendant to apply to strike out a claim for lack of harm.  But in such cases, in determining whether to actually strike out a claim, proportionality of a particular piece of litigation will likely be the yardstick; much will depend on the “vindicatory benefit” open to the plaintiff if they take the proceeding through to trial and succeed.  From the Court’s perspective, will all the attendant time and costs in obtaining a judgment have been worth the effort?  It has also been said that the Jameel principle may be applied if the defendant can prove at the pre-trial stage that the plaintiff suffered “less than minor harm”.  But because it is inherent in the Jameel principle that the Court is being asked to strike out an otherwise tenable claim, this cuts across citizens’ rights to have their disputes determined by courts, which has some constitutional significance.  

In a slightly different vein, the courts have grappled to demarcate an appropriate threshold of harm for the plaintiff to establish as a notional fourth element of their claim.  One High Court Judge considered that “serious harm” was an appropriate standard; an Associate Judge considered “substantial harm” to be the more suitable test; and yet another High Court judge plumped for “more than minor harm”.  

The latter approach has prevailed.  In 2020, the Court of Appeal approved the “more than minor harm” standard.  However, the Court did not really clarify whether reputational harm is to proven by (a) the plaintiff adducing evidence of actual reputational harm; or (b) reference to the intrinsic seriousness of the defamatory meanings pleaded.

How will the Courts approach these issues in the future?
We expect first-instance courts to exercise caution, and probably to interpret the Court of Appeal’s judgment as meaning that harm is predicated on the seriousness of the defamatory meanings pleaded. 

When the Defamation Act is eventually reformed—probably in the next election cycle—our money is on Parliament adopting England’s “serious harm” threshold, which is now at least subject to a considerable body of appellate case law, and is shortly to be adopted in Australian legislation.  

For now, the saving grace for current New Zealand practitioners is that the issue of harm is unlikely to rear its head too often.  In the broad majority of cases, the defamatory statement is of an inherently serious character and was published to a sufficiently wide audience.  In these cases, questions surrounding the threshold of harm or proportionality of the litigation will not usually arise.

Masterclass

Legal practice tips
For plaintiffs:

  • Plaintiffs need to be alive to the fact that claims based on minimal publication or fairly watery meanings will be put under a blowtorch, whether in a strike-out context or at trial.
  • Attempts to mask watery claims by seeking a declaration instead of damages, have failed previously.

For defendants:

  • Although the increased focus on harm is clearly a welcome development for defendants, New Zealand’s confused approach has made it risky to attempt strike-out applications under the Jameel principle – even on what under English common law would have been fairly rudimentary applications.
  • Given the spread of defamation cases between different judges in New Zealand, for most it will be their first time encountering this tricky issue.  A conservative judicial approach should therefore be anticipated.
  • Given the somewhat confusion over who bears the onus on the issue of harm in a substantive context, we think it is appropriate for defendants to raise any alleged lack of harm as a discrete defence, but the issue should also be attacked on the plaintiff’s pleadings.

Recommended reading

For New Zealand’s leading recognition of the Jameel principle, where the principle was applied.  The whole judgment should be read.

For another perspective on the application in New Zealand of the Jameel principle and threshold of harm.  In practice, this judgment has somewhat pulled the handbrake on the Jameel principle’s momentum: see paragraphs [47]–[69].

For a further application of the Jameel principle, but applied with recourse to Sellman v Slater.  This case demonstrates the cautious approach defendants are likely to encounter until appellate consideration or legislative reform.  The whole judgment should be read.

For the only appellate authority to consider the issue of harm, with the “more than minor harm” threshold being applied: see paragraphs [44]–[45].  See also our separate post on the judgment. 

  • Lachaux v Independent Print [2019] UKSC 27, [2019] 4 All ER 485 (United Kingdom Supreme Court)

For the definitive authority on the effect of England’s “serious harm” threshold.  The whole judgment should be read.

  • Emma Croskery “A Principled Approach to Defamation Claims in New Zealand: Untangling the Harm Threshold” (2019) 50 VUWLR 33 (Academic article and LLB Honours dissertation)

For a perceptive and punchy consideration of the tangled web New Zealand courts have weaved over the issue of harm.

That’s now all the elements of a defamation claim – assuming, of course, harm is an element at all.  Time for the defences.  We deal first with the principal defence to any claim for defamation: truth.