What the Serious Harm Test Actually Requires After Lachaux
When Parliament enacted the Defamation Act 2013, legislators intended the serious harm test to act as a filter: a mechanism for striking out claims where the reputational impact was trivial, speculative, or unmeasurable. What they created, as the courts have since interpreted it, is something considerably more demanding.
The Supreme Court's decision in Lachaux clarified that claimants must demonstrate actual serious harm, not merely the inherent tendency of the words to harm. The distinction is critical. Before Lachaux, courts could look at the natural meaning of a statement and infer from its seriousness that harm must have followed. After the ruling, that inference is no longer sufficient. Claimants must marshal evidence of real-world consequence.
For the complete judicial reasoning and its practical impact on how cases are now assessed, the Lachaux ruling and how courts now assess serious harm provides the authoritative analysis.
Individuals vs Companies: Two Different Hurdles
The serious harm test applies differently depending on whether the claimant is an individual or a body that trades for profit. For individuals, the test asks whether the statement has caused, or is likely to cause, serious harm to reputation. For companies, the Act requires that the statement has caused, or is likely to cause, serious financial loss, not just reputational damage in the abstract.
This asymmetry creates a real divide in how claims are built. An individual solicitor falsely accused of professional misconduct can demonstrate harm through lost instructions, changed referral patterns, or documented social consequences. A trading company accused of selling substandard goods must go further, showing an identifiable impact on its revenue or customer relationships, though causation can sometimes be inferred where the timing and scale of the publication make it implausible that the financial effect arose from anything else.
Non-profit organisations, charities, and public bodies occupy a more complex position. Courts have been inconsistent about which strand of the test applies, and claims in those categories require careful strategic analysis before proceedings.
Evidence That Courts Find Convincing (and Evidence They Dismiss)
Courts assessing serious harm look for evidence that is concrete, dated, and causally linked to the specific publication in question. The strongest evidence categories are:
Lost business or income that correlates directly to the period following publication: supplier contracts cancelled, client relationships ended, or demonstrable drops in revenue. Witness statements from people who read the statement and changed their behaviour as a result. Screen captures showing the statement being shared, liked, or commented on in ways that indicate the audience took it seriously.
Courts are generally unimpressed by the claimant's own assertion that their reputation has been harmed, unsupported by external corroboration. General evidence of distress, anxiety, or social embarrassment may reinforce a claim but will rarely sustain one on its own. Similarly, evidence that a statement was published but received little engagement (few views, no shares, limited audience) works against the claimant rather than in their favour.
One factor courts examine carefully is the audience. A statement published in a professional context to an audience of colleagues or clients carries greater harm potential than the same statement made to strangers who have no prior relationship with the claimant.
The Reach Question: How Widely Was the Statement Published?
Reach is not a direct proxy for harm, but it is a significant factor in the harm calculation. A statement published on a major national news website and shared thousands of times creates a very different evidential picture from the same statement posted on a minor forum with a small readership.
Claimants should document reach systematically: the number of views or impressions where that data is available, the number of shares, reposts, or re-publications, and whether the statement was picked up and amplified by other outlets. For professional or business claimants, reach within the specific community where their reputation matters (an industry network, a professional body, a local business community) may be more probative than raw total reach.
Conversely, defendants routinely argue that publication was limited and that the statement reached very few people likely to act on it. Anticipating and pre-empting that argument with solid reach evidence strengthens the serious harm case considerably.
Common Scenarios: Passes the Test vs Likely to Fail
Understanding which fact patterns typically pass the threshold, and which do not, helps claimants calibrate expectations before investing in advice.
Scenarios that tend to pass the test: a false allegation that a professional committed a criminal offence, published to an audience that includes the professional's clients or referrers and causing measurable changes in those relationships; a campaign of fake negative reviews that demonstrably suppresses a business's search visibility and revenue; a social media post shared widely within a defined community that leads to social ostracism or employment consequences.
Scenarios that tend to fail: a single offensive comment from an unknown account with few followers; a statement made in a private context that was never widely seen; an allegation that is damaging in content but published to an audience unlikely to encounter the claimant professionally or socially; a statement where the claimant's existing reputation was already so damaged by other means that this publication made no material difference.
The serious harm test guidance for claimants maps these patterns against the current judicial approach and helps identify where borderline cases are most likely to be challenged.
What Happens If Your Claim Falls Short — Alternative Routes
A claim that cannot clear the serious harm threshold is not necessarily a claim with no remedy. Several alternative legal routes may be available depending on the facts.
Where the statement is factually false and was published maliciously, a malicious falsehood claim may proceed without needing to satisfy the serious harm test, though it carries its own burden of proving both falsity and malice. Where the publication involves private information (true but private), a misuse of private information claim is governed by different rules entirely and does not require serious harm.
The Harassment Act 1997 and the Malicious Communications Act 1988 provide criminal and civil routes where the conduct forms part of a sustained campaign rather than a single publication. In some circumstances GDPR-based right to erasure requests can achieve removal of damaging content without any need to satisfy a legal threshold at all.
Building Your Evidence File Before Speaking to a Solicitor
The most valuable thing a prospective claimant can do before their first consultation is to build a comprehensive, organised evidence file. This transforms the consultation from an exploratory exercise into a concrete strategic conversation.
That file should contain: date-stamped screenshots of every instance of the statement you can locate; records of who you believe was in the audience when it was published; any communications from third parties that demonstrate the statement has been read and acted upon; and a clear timeline from first publication to present showing any adverse consequences. If you have financial evidence (a contract terminated, a job offer withdrawn, bookings cancelled), include it. The stronger your evidence file when you walk through the door, the faster your solicitor can assess merit and the lower your initial costs will be.
