Coker v Nwakanma

In a libel claim, the claimant must prove publication to a third party, reference, defamatory meaning and serious harm under Defamation Act 2013, section 1(1). Serious harm may be inferred from the meaning and circumstances of publication, even where publication is limited. The statutory truth defence requires the defendant to prove substantial truth on the balance of probabilities. The standard remains single and unvarying, but the evidence required will depend on the seriousness of the allegation and its consequences. A finding of forceful, non-consensual digital vaginal penetration substantially established the truth of an allegation that the claimant was a rapist. The claim was therefore dismissed.

The claimant brought a libel claim concerning WhatsApp messages in which the defendant allegedly described him as a rapist following an alleged sexual assault at the defendant’s flat. The claimant relied on three messages and alleged publication to third parties.

The court found publication of only one message, sent to the defendant’s sister. That message conveyed a serious allegation of non-consensual sexual penetration and was defamatory. The central issues were whether the publication caused serious harm and whether the defendant established the statutory truth defence under section 2 of the Defamation Act 2013.

1. Outcome. The claim was dismissed. The defendant succeeded on the statutory truth defence.
2. Publication and meaning. Only the First Message was proved to have been published to a third party. The words meant that the claimant had committed a serious sexual assault involving non-consensual penetration of the victim’s sexual organs. They were defamatory at common law and constituted a Chase Level 1 allegation of criminal conduct.
3. Serious harm. The meaning alone was sufficient to establish serious harm under section 1(1) of the Defamation Act 2013. Serious harm is not determined by the number of publishees. The court may infer it from the meaning, the claimant’s situation, the circumstances of publication and inherent probabilities. The fact that the recipient had already heard an account of the assault did not prevent the publication from causing serious harm.
4. Truth. Under section 2(1), the defendant bore the burden of proving substantial truth on the balance of probabilities. The standard of proof remained single and unvarying, but the seriousness of an allegation required correspondingly strong evidence. The court accepted the victim’s evidence and found that the claimant had forcefully penetrated her vagina with his fingers and touched her breasts without consent.
5. Substantial truth and alternative damages. The proven assault substantially established the meaning of the First Message. Digital penetration was, in substance, rightly described as rape for the purposes of the defamatory allegation. Alternatively, if a distinction between digital and penile penetration had mattered, only nominal damages would have been awarded, applying the principle in Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 (CA).