Historically, plaintiffs enjoyed a freewheeling ‘presumption of harm’.  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 is 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.

Some common-law developments have shifted the goalposts somewhat.  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 gravely defamatory meanings, could safely be 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 (e.g. a couple of website hits), thus making it untenable that the plaintiff had actually suffered reputational harm.  In such cases, the Court would strike out the plaintiff’s claim on the basis that the costs and time to try the case, 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 commonly used is whether “the game is worth the candle”.  A more legalistic lens is whether a “real and substantial tort” has been committed.

Around the same time as the Jameel principle was taking root, English courts began also 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 particular statement could genuinely be expected to cause reputational harm.  So, 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 raised the bar further still, such that, in England:

• In order for a statement to be defamatory, the claimant must establish that it has caused “serious harm” to their reputation, or is likely to do so in the future.
• Such harm must be established from actual facts about the statement’s impact, nor merely the meaning of the words.
• In turn, the common-law presumption of harm has been swept away entirely.

A bit messy, but tolerably clear.

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 actual harm sustained to the plaintiff.  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.  

In a slightly different vein, the Courts also 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, questions remained as to which party bore the onus to prove (or disprove) this threshold of harm.

But from the cases decided since, we can now distill the following principles:

• The statements sued on must inherently tend to harm reputation in more than a minor way before they can be defamatory.
• In terms of onus, it is for a plaintiff to establish that.
• However, once established, it is open to a defendant to call evidence to rebut the presumption of harm.  It may do so at the strike-out stage, by way of a conventional application of the Jameel principle (e.g. a proven minuscule audience).  Or it may lead evidence at trial, for example that a plaintiff already had a bad reputation such that there is marginal additional harm from the publication.
• When a defendant does so, the evidential burden rests with it in the same way as all rebuttable presumptions.

• Claims based on minimal publication or fairly watery meanings can be put under a blowtorch, whether in a strike-out context or at trial.
• Plaintiffs’ attempts to mask watery claims by seeking a declaration instead of damages, have failed previously.

• Opai v Culpan [2017] NZHC 1036, [2017] NZAR 1142 (High Court)

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

• Sellman v Slater [2017] NZHC 2392, [2018] 2 NZLR 218 (High Court)

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].

• Craig v Stiekema [2018] NZHC 838, [2018] NZAR 1003 (High Court)

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.

• Craig v Slater [2020] NZCA 305 (Court of Appeal)

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.