Man wins ‘fleeting defamation’ case and is awarded €500 – should the law of defamation really concern itself with such a trifle?

Christmas trifle; via FlickrThe latin maxim “de minimis non curat lex” is usually translated as “the law does not concern itself with trifles”, meaning the courts will not consider trifling matters. Christmas may be the time for trifles (like the Christmas trifle pictured left), but the Courts are not the place for them. I was reminded of the maxim today when I read the headline that a “Man wins ‘fleeting defamation’ case against Luas and is awarded €500“. The judge is reported (here and here) to have found that:

there was a “fleeting defamation” … but, “having regard to the fact it was almost immediately expunged”, he could not find any lasting damage to his reputation or good name. In the circumstances, he awarded nominal damages of €500 [plus costs] … There was a “momentary defamation” which was almost immediately corrected such that people in the vicinity could not have reasonably formed any lasting adverse opinion of the plaintiff, …

Given the trifling sum of nominal damages, the plaintiff is lucky to have received his costs. Even more so, in my view, is he lucky to have been successful at all. I don’t think that the law of defamation should be concerned with such trifles. It is a terrible waste of the courts’ resources that they should have to consider cases of “fleeting” or “momentary” defamation that did not result in any damage to the plaintiff’s reputation. The case, as reported, is an excellent exmaple of why the law of defamation needs a threshold of seriousness, by which a plainitff cannot take a case without establishing that the impugned statement has caused or is likely to cause serious or substantial harm to the plaintiff’s reputation. I’ve mentioned this idea twice before on this blog.

In March 2011, when the UK was considering introducing a stautory requirement of serious harm, I wrote:

The UK’s Ministry of Justice has announced its long-awaited consultation on the reform of the UK’s libel laws. Much of the territory covered by draft Defamation Bill was covered in Ireland by the Defamation Act, 2009 (also here), …

… clause 1 of the Bill requires that a statement is not defamatory unless it has caused or is likely to cause substantial harm to the plaintiff’s reputation. There is no equivalent requirement of substantial harm in the Act. However, in Thornton v Telegraph Media Group [2010] EWHC 1414 (QB) (16 June 2010), after a thorough review of the authorities, Tugendhat J held that the common law definition of “defamatory” must include a qualification or threshold of seriousness, so as to exclude trivial claims, both as a matter of precedent and to give effect to Article 10 of the European Convention on Human Rights. Section 3(2) of the Act provides that it does not affect the general law of defamation “except to the extent that it provides otherwise (either expressly or by necessary implication)”. It is an open question whether this threshold of substantial harm forms part of Irish law, since there was no direct authority on the point before the coming into operation of the Act. However, if it does form part of the general law of defamation, it could have been preserved by section 3(2), unless the definition of defamation in sections 2 and 6 of the Act is taken to be the full definition of defamation, and thus excludes it by necessary implication. One of the definitions in section 2 provides that

“defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and “defamatory” shall be construed accordingly;

Section 6(2) provides

The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “defamation” shall be construed accordingly.

Neither of these statements includes a threshold of substantial harm, and the words “means” and “consists” point to the completeness of the statutory words, so I think it very likely that section 6(2) will be taken to exclude common law threshold of substantial harm by necessary implication. But the matter does not end there. Section 2 of the European Convention on Human Rights Act, 2003 (also here) requires that statutes be given interpretations compatible with the Convention. If Tugendhat J is right that the threshold of substantial harm is necessary to give effect to Article 10 of the Convention, then it may be that sections 2 and 6(2) will have to be interpreted as though they incoroprated that threshold – perhaps by holding that the requirement of injury to reputation in section 2 will only be made out if there is or can be a serious (Thornton) or substanial (clause 1 of the Bill) harm to the plaintiff’s reputation. But this is not straightforward as a matter of Irish law. For this reason alone, the clarification of the issue in clause 1 of the Bill represents a signification improvement of the position under the Act.

The Bill became the Defamation Act, 2013; and section 1 did indeed enact a threshold of seriousness, about which I wrote in November 2015:

On the one hand, one explanation of the relative decline of London’s attractiveness to your average libel tourist is said to lie in section 1(1) of the Defamation Act, 2013, which provides that a “statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant” (see the note here (pdf)). This requirement of “serious harm” is said to be weeding out those claims which have only tenuous connections with London. And since the Irish Defamation Act, 2009 (also here) does not have a similar requirement, it is felt that Dublin would be a more congenial destination for libel tourists. However, this is only half the story. Section 1(1) codified the common law rule adumbrated by Tugendhat J in Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) (16 June 2010) (the claimant was successful at the subsequent trial: [2011] EWHC 1884 (QB) (26 July 2011); on Thornton and s1(1), see Cooke v MGN [2014] EWHC 2831 (QB) (13 August 2014) (currently under appeal); Lachaux v Independent Print [2015] EWHC 2242 (QB) (30 July 2015)). And section 3(2) of the Irish Act (also here) provides that it “shall not affect the operation of the general law in relation to defamation except to the extent that it provides otherwise (either expressly or by necessary implication)”. Hence, if the requirement of serious harm is a matter of common law (and Thornton says it is), and if it is not precluded by the 2009 Act, then it could very well form part of Irish law.

We must, of course, await a suitable case to answer the question definitively; but, as I read the Act, there is nothing in it to preclude the recognition and application of a common law rule of serious harm. Tughendhat J held that regard for Article 10 of the European Convention on Human Rights and the principle of proportionality both require a threshold of seriousness in defamation claims; and section 2 of the European Convention on Human Rights Act, 2003 (also here) requires that Acts – such as the Defamation Act, 2009 – must be interpreted a manner compatible with the Convention. This interpretative obligation would preclude an interpretation of the definition of defamation in sections 2 and 6 of the 2009 Act (also here and here) to exclude the seriousness threshold by necessary implication.

Of the cases listed in the second extract, Lachaux was appealed and reached the UK Supreme Court last summer: [2019] 3 WLR 18, [2019] UKSC 27 (12 June 2019). On the Thornton issue, Lord Sumption (Lords Kerr, Wilson, Hodge and Briggs concurring) said:

7. In two important cases decided in the decade before the Defamation Act 2013, the courts added a further requirement, namely that the damage to reputation in a case actionable per se must pass a minimum threshold of seriousness.

8. The first was Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, [2005] EWCA Civ 75 (03 February 2005) … The Court of Appeal held that it was an abuse of process for the action before them to proceed “where so little is now seen to be at stake”, and duly struck it out. The effect of this decision was to introduce a procedural threshold of seriousness to be applied to the damage to the claimant’s reputation. Two things are clear from the language of Lord Phillips’ judgment. One is that the threshold was low. The damage must be more than minimal. That is all. Secondly, the Court of Appeal must have thought that the operation of the threshold might depend, as it did in the case before them, on the evidence of actual damage and not just on the inherently injurious character of the statement in question.

9. The second case was Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985, [2010] EWHC 1414 (QB) (16 June 2010) … Tugendhat J held that in addition to the procedural threshold recognised in Jameel, there was a substantive threshold of seriousness to be surmounted before a statement could be regarded as meeting the legal definition of “defamatory”. The judge’s definition (para 96) was that a statement “may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do” (the emphasis is the judge’s). … At para 94, he dealt with the relationship between the definition thus arrived at and the presumption of general damage, in terms which suggested that (unlike the Jameel test) the application of the threshold depended on the inherent propensity of the words to injure the claimant’s reputation …

Lord Sumption held that section 1 of the 2013 Act raised the threshold of seriousness from that in Jameel and Thornton, and requires its application to be determined by reference to the actual facts about its impact, not merely the meaning of the words.

In Gilchrist & Rogers v Sunday Newspapers [2017] IECA 190 (21 June 2017) [33] Finlay Goeghegan J concluded that the approach of the English courts, as explained in Jameel, to striking out a defamation claim as an abuse of process where the potential benefit to a plaintiff is disproportionate to the probable costs and use of court resources is not a basis upon which the Irish courts will exercise an inherent jurisdiction to strike out proceedings as an abuse of process. This rejects the procedural threshhold of seriousness, but says nothing about whether the substantive threshold of seriousness in Thornton forms part of Irish law. So far as I can find, there has been no Irish case on the point. It does not appear from today’s reports of the ‘fleeting defamation’ case whether the point was argued in that case – though, to my mind, it was an appropriate case in which to make the argument. If the courts do not get the opportunity to adopt Thornton, then the current review of defamation law being undertaken by the Department of Justice ought to follow the lead of section 1 of the UK’s 2013 Act. Meanwhile, Christmas trifle awaits.

Update: the case is Diop v Transdev Dublin Light Rail [2019] IEHC 849 (12 December 2019).