Defamation, Serious Harm, and Access to Justice: A Reflection on Socioeconomic Barriers

Diego F. Soto-Miranda
Apr 28
3 min read

By Diego F. Soto-Miranda

Introduction

When Parliament enacted the Defamation Act 2013, it was clear that the goal was to strike a balance—ensuring freedom of expression without allowing reputational harm to be weaponised frivolously. Yet, over time, one provision in particular has raised pressing concerns: the "serious harm" requirement. While its intent was noble, I believe it inadvertently creates socioeconomic barriers, undermining equitable access to justice. In this post, I want to reflect on why this threshold poses unique challenges for claimants of modest means.

Understanding the Serious Harm Requirement

Section 1(1) of the Defamation Act 2013 states:

"A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant."

The idea was to filter out trivial claims and protect robust debate. But in practice, proving "serious harm" is far easier for public figures and corporate entities than for ordinary individuals. Wealth and profile seem to grant an advantage that undermines the Act’s purpose.

Who Is Left Behind?

Let’s be candid—claimants from affluent backgrounds or high-profile organisations are far better positioned to meet the evidential burden. They can present media coverage, public metrics, or expert witnesses to demonstrate reputational damage. For them, legal costs, resources, and publicity work in their favour.

But what happens when a person without public standing—someone without a media machine or PR team—suffers a reputational blow? Often, they lack the tools to quantify their harm in a way that satisfies the court. Their professional and personal communities may know the damage intimately, but translating that into admissible evidence is a costly and daunting process.

Key Case Law: Cooke and Jameel Principles

Consider Cooke v MGN Ltd [2014], where the court reinforced the necessity to show measurable serious harm. This set a clear precedent, but it also raised the stakes for any claimant lacking public exposure.

Couple this with the Jameel abuse principle (Jameel v Dow Jones & Co Inc [2005]), where courts are encouraged to dismiss claims deemed disproportionate or not worth judicial time. Together, these doctrines—though logical in theory—compound the disadvantages faced by claimants without deep pockets or prominent reputations.

Why This Matters: Access to Justice

What troubles me most is the chilling effect. Individuals and communities without resources are increasingly deterred from bringing valid claims. Fear of legal costs, procedural hurdles, and the difficulty of proving "serious harm" become insurmountable barriers.

If access to justice depends on one's ability to assemble a media dossier or afford expert witnesses, then our legal system risks tilting toward privilege. Defamation law, by its nature, should serve everyone equally—not just the wealthy and well-connected.

A Path Forward: Possible Reforms

I believe there are practical ways to address this imbalance:

Flexible Evidential Standards: Courts could adopt a more contextual approach, considering harm within personal or professional circles rather than focusing solely on public prominence.
Expanded Legal Aid: Making legal aid available for defamation cases involving financial hardship would ease the burden on disadvantaged claimants.
Clearer Judicial Guidelines: Streamlining case management and reducing procedural complexity would help level the playing field.

Conclusion

The serious harm test was designed with good intentions, but in reality, it has exposed and exacerbated socioeconomic disparities. Ensuring access to justice must remain a cornerstone of our legal system. If left unaddressed, the current framework risks sidelining those without resources or recognition.

Diego F. Soto-Miranda is a barrister specialising in commercial, defamation and human rights law. For further insights or to discuss representation, get in touch via email.