Elliot Furniss 20778399

Law essay.
Defamation
Libel law has developed considerably following the Defamation Act 2013 in which the
main change was the requirement for a defamatory allegation to cause serious harm
to a claimant’s reputation for a case to succeed. Define what you think the courts
now consider serious harm to mean with reference to key libel case law after and
including Monroe v Hopkins 2017.

In 2013 the government of the United Kingdom released the Defamation Act 2013. The
intention of the act was to reform the law of defamation to ensure that a fair balance is
struck between the right to freedom of expression and the protection of reputation 1. The
main change to made to libel law was in Section 1, titled ‘Serious Harm’. The section has two
parts, the first stating ‘A statement is not defamatory unless its publication has caused or is
likely to cause serious harm to the reputation of the claimant’ and the second ‘For the
purposes of this section, harm to the reputation of a body that trades for profit is not
“serious harm” unless it has caused or is likely to cause the body serious financial loss’ 2.
Before the changes came into place in 2013, the claimant only had to prove that the public’s
estimation of the claimant would be lowered as a result of the supposed defamatory
comment, and while the claimant must still prove that, they must also prove that the
comments have led or could lead to serious harm to them or serious financial loss.

In order for a claimant to be successful in a defamation case, they must pass the DIP test.
The DIP test is to prove that, for one, the statement is defamatory. A defamatory comment
can be defined as the comment exposing the claimant to hatred, causing them to be
avoided, lowering them in the estimation of right-thinking members of society or
disparaging the claimant in their trade or profession. The second part of the DIP test is to
prove that they have identified in the comment. This often isn’t just as simple as the
claimant having their name or business named clearly in the comment. The referencing of
the claimant in a comment could be more subtle, so the claimant must prove that the
comment either is making an inference about them or an innuendo about them, the
difference between the two being that an inference would be making a comment about
them with a secondary meaning behind it that anyone would understand whilst an
innuendo is a comment with a secondary meaning only a group with special knowledge
would understand. For example, in the ‘McAlpine v Bercow’ case, where Sally Bercow
tweeted "Why is Lord McAlpine trending? *innocent face*" after BBC Two did a report
which linked an unnamed "senior Conservative" politician to sex abuse claims. The judge
decided that any reasonable reader would understand both the ordinary and innuendo
meanings of Bercow's tweet and interpret the "innocent face" as insincere and ironical.
With regard to the innuendo of the tweet, it was found that the Tweet was "an allegation of
guilt”3. If the comment refers to the claimant being a member of a group and says no other
details, all members of said group may be able to sue for defamation, provided the group is
sufficiently small. The last part of the DIP test the claimant needs to prove is that the
1
‘Defamation Act-Government Bill’ (UK parliament) https://bills.parliament.uk/bills/983

2
‘Defamation Act 2013’ (Legislation.gov.uk) https://www.legislation.gov.uk/ukpga/2013/26/section/1/enacted
3
McAlpine v Bercow [2013] EWHC 1342 [2013]
Elliot Furniss 20778399

statement has been published to a third person. In the case of news media, there is little
difficulty in proving this as publication is widespread. When it comes to the possible
lowering of the claimant’s reputation, the claimant doesn’t need to prove that their
reputation has been damaged by the defamatory comments, only that it could.

The claimant needs to pass the DIP test to show that they actually have a solid case. To win
a defamation action the claimant has to show that the published defamatory comment has
caused or is likely to cause ‘serious harm’ to his or her reputation. In the case ‘Lachaux v
Independent Print Ltd and another [2019]’4, the Supreme Court ruled that section 1 of the
Defamation Act 2013 imposed a new threshold that the harm caused had to be serious,
adding on to the common law presumption of damage to reputation. It was decided that
the application of the new threshold of serious harm to reputation must be determined by
reference to the actual facts about its impact, and not just the meaning of the words. It was
decided that for a claim to be upheld, an assessment of the actual consequences resulting
from the publication of the defamatory statement would be needed. This includes the size,
and characteristics of the relevant audience, the quality of the publication and whether the
claimant had any reputation to begin with. The Court decided that serious harm to
reputation cannot be proven just by reference to the inherent tendency of words to cause
harm to reputation. Claimants are now required to show through a combination of the
inherent tendency of the words and their actual impact that serious harm has or is likely to
be caused to the claimant's reputation. The impact from ‘Lachaux v Independent Print Ltd
and another [2019]’ was that in order to assess if serious harm to reputation was caused, it
will now be necessary for claimants to consider to whom the statement was actually
communicated, and the impact of that communication, in addition to considering the
inherently injurious character of an allegedly defamatory statement.

‘Monroe v Hopkins [2017]’ was a case in the High Court between food writer and
activist Jack Monroe against Katie Hopkins.5 Following protesters spray-painting "f**k Tory
scum" on the Monument to the Women of World War II in London, Katie Hopkins tweeted
on the social media site Twitter to Jack Monroe: "@MsJackMonroe scrawled on any war
memorials recently? Vandalised the memory of those who fought for your freedom.
Grandma got any more medals?". After Monroe denied the allegation and said that she had
family in the armed forces, she requested a retraction from Hopkins via Twitter. Katie
Hopkins then tweeted “Can someone explain to me – in 10 words or less – the difference
between irritant @PennyRed and social anthrax @MsJackMonroe” after Monroe first
response. Laurie Penny was a political writer who said she had ‘no problem’ with the initial
vandalism of the war memorial, who Katie Hopkins then tweeted saying “@PennyRed thinks
this is OK. Burn her passport, bulk buy her lube & make her a woman of ISIS”. Monroe then
went on to ask Hopkins to make a public apology and give £5,000 to "migrant rescue" as a
settlement to prevent the situation escalating any further and the matter going to court.
However, instead Hopkins blocked Monroe from viewing her account in any way. Instead,
Hopkins didn’t apologise or donate any money, and the matter went to court. Monroe
complained that Hopkins’ tweet accused her of ‘vandalising a war memorial and desecrating

4
Lachaux v Independent Print Ltd and another [2019] UKSC 27 [2019]

5
Monroe v Hopkins [2017] EWHC 433 [2017]
Elliot Furniss 20778399

the memory of those who fought for her freedom, or of approving or condoning such
behavior’. Monroe’s lawyers argued that the second tweet carried an innuendo that
Monroe approved or condoned the vandalism. Katie Hopkins’ answer to the claim was ‘that
her tweets do not bear the meanings complained of; are not defamatory of Ms Monroe
according to common law principles; and, or in any event, are not defamatory because it has
not been shown that they caused serious harm to Ms Monroe’s reputation, as required by s
1 of the Defamation Act 2013’. Mr Justice Warby, who was the judge for the case, said that
the issues that needed to be sorted were what meanings the tweets carried, whether or not
those meanings were in fact defamatory and finally whether or not the serious harm
required was met. The tweet in question clearly passed two parts of the DIP test, as Jack
Monroe was clearly identified in the tweet as Hopkins tagged Jack Monroe’s Twitter handle
‘@MsJackMonroe’ in the tweet and also the statement had been clearly published as it had
been posted publicly on social media to, at the time, Hopkins’ 570,000 followers. Therefore,
the only challenge Monroe had was to prove the statement was defamatory and caused
‘serious harm’. Mr. Justice Warby ruled that the tweet bore the meaning ‘that Ms Monroe
condoned and approved of scrawling on war memorials, vandalising monuments
commemorating those who fought for her freedom’, also adding ‘These are meanings with a
defamatory tendency, which were published to thousands’. Hopkins herself opted to not
appear in court, but her counsel, Jonathan Price, told the judge the dispute was ‘relatively
trivial’ and had been ‘resolved on Twitter in a period of several hours’. He claimed that ‘no
lasting harm, and certainly no serious harm’ to Monroe's reputation resulted from it and
that Hopkins had actually ‘mistakenly’ tagged Monroe's Twitter handle instead of another
columnist who had tweeted about the war memorial incident. The judge ruled that Hopkins’
tweet had ‘not only caused Ms Monroe real and substantial distress, but also harm to her
reputation which was serious’. Hopkins lost the case and was ordered to pay Monroe
£24,000 in damages, £16,000 for the first tweet and £8,000 for the second. She was then
ordered to pay costs, estimated to top £300,0006. All this could’ve been avoided if Hopkins
had just said sorry to Monroe in the beginning. The fact that people would think that
Monroe had vandalised a war memorial, and the abuse that would be coming her way from
people who believed Hopkins’s tweets referred to her meant that ‘serious harm’ was pretty
clear and obvious, though Hopkins still said after the case that she was "very likely" to
appeal against the ruling7, on the grounds that no evidence of harm had been produced in
the court. Hopkins wasn’t allowed to appeal due to Mr Justice Warby saying that the appeal
would not have "a real prospect of success"8.

In conclusion, the court had many responses to the points of Hopkins’ defence. Hopkins had
said that Twitter is the “Wild West” of the internet and not as authoritative as a newspaper.
The court said that the limited authority of the type of publication can't be relied on to

6
Katie Hopkins’ legal bills to top £300,000 after losing High Court battle to Jack Monroe (TheIndependent)
https://www.independent.co.uk/news/uk/home-news/katie-hopkins-legal-bills-cost-ps300-000-high-court-
battle-jack-monroe-war-memorial-vandalism-a7623636.html

7
Katie Hopkins 'very likely' to challenge Jack Monroe libel ruling (TheGuardian)
https://www.theguardian.com/uk-news/2017/mar/15/katie-hopkins-jack-monroe-libel-ruling-bbc-mailonline

8
Katie Hopkins cannot appeal Jack Monroe libel tweet case (BBC) https://www.bbc.co.uk/news/uk-england-
essex-39437724
Elliot Furniss 20778399

avoid serious harm, and therefore there was no good reason to discount what she said just
because she used Twitter. Hopkins’ statement that there was no evidence of harm was
dismissed as does not avoid the serious harm threshold being met. The court found abuse
from the tweets directed at Monroe, showing the harm to her reputation. They also said
that despite there being some abuse towards Monroe before the tweets, this did not deter
from the fact that the abuse after the tweets could still be used as evidence for ‘harm to her
reputation’. Furthermore, the fact that it was made clear through newspaper coverage of
the tweets that Ms Hopkins mistakenly tagged Monroe and that Monroe denied the
vandalism did not detract from serious harm, and actually the newspaper coverage brought
whole new audience to the matter.

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