MR SUENG HA HWANG v MS MI SOON KIM

For slander to be actionable per se on the ground that it imputes a criminal offence, the words must convey to ordinary reasonable hearers, in context, recognisable criminal conduct punishable by imprisonment. The court must assess both the ordinary meaning of the words and the elements of the alleged offence. Rhetorical, exaggerated or non-literal threats may be offensive, bullying or distressing without alleging criminal conduct. Similarly, an allegation of a damaging or toxic intimate relationship, even involving mental-health consequences and police interest, does not necessarily impute controlling or coercive behaviour under Serious Crime Act 2015, section 76. The claimant must also establish serious harm under section 1 of the Defamation Act 2013, but failure to establish an actionable imputation is sufficient to defeat the claim.

The claimant and defendant were active members of the UK and European Korean community. The claimant alleged that the defendant made defamatory statements about him at political and community events in 2018.

The allegations concerned an alleged threat to stab the defendant and an alleged intimate relationship with a North Korean woman which had caused serious psychological harm and attracted police involvement. The claimant brought a claim for slander actionable per se, alleging imputations of imprisonable criminal conduct. The defendant accepted making some of the statements, but disputed that they conveyed criminality and relied on substantial truth.

The central issue was whether the words, understood in their social and political context, imputed recognisable criminal conduct punishable by imprisonment.

1. The claim was dismissed. The defendant’s admitted statements were defamatory factual allegations, but they did not amount to slanders actionable per se because they did not impute recognisable criminal conduct punishable by imprisonment.
2. For the alleged knife threat, the court assessed the words from the perspective of ordinary reasonable members of the audiences and by reference to the elements of the proposed offences. A threat to kill under section 16 of the Offences Against the Person Act 1861 requires an intention that the person threatened would fear the threat would be carried out. Section 4 of the Public Order Act 1986 similarly requires the specified intention or likelihood concerning immediate unlawful violence. The statutory qualification in section 4 applied to the relevant words and was not satisfied merely by using threatening, abusive or insulting language.
3. In context, the knife allegations would probably have been understood as accusing the claimant of being an aggressive bully who used menacing and exaggerated language to intimidate the defendant. They would not reasonably have been understood as alleging a literal threat of immediate violence or murder. Political tension, strong language and rhetorical threats were relevant contextual features.
4. The alleged sexual-relationship imputation engaged the possible elements of section 76 of the Serious Crime Act 2015. The provision criminalises repeated or continuous controlling or coercive behaviour in an intimate relationship which has a serious effect on the other person, with the requisite knowledge. A single act need not itself be criminal, but the offence requires a course of conduct involving systematic control or coercion.
5. The statements about the relationship suggested serious harm, culpability and victimisation, but were unspecific and equally consistent with non-criminal wrongdoing or a different criminal act. They did not impute repeated or continuous controlling or coercive behaviour. Police involvement did not, by itself, amount to an allegation of guilt.
6. Because the claimant failed at the threshold issue of actionable criminal imputation, it was unnecessary to resolve the factual disputes, substantial-truth defence or serious-harm issue.