Arujuna Sivananthan v Thurairajah Vasikaran

Under section 1(1) of Defamation Act 2013, a claimant must prove that each publication caused or is likely to cause serious reputational harm. The test concerns actual or probable impact on the minds of publishees, assessed from evidence, including properly grounded factual inference. It is not satisfied by the claimant’s offence, distress or the inherent defamatory tendency of the words alone. In a small, closed group, the court must scrutinise readership, likely onward dissemination and causation. Prior knowledge of a dispute, repeated allegations and a partisan audience may make causal impact less probable. The claimant failed to establish serious harm from the WhatsApp posts. The statements were therefore not defamatory and judgment was given for the defendant.

Dr Arujuna Sivananthan brought libel proceedings against Mr Thurairajah Vasikaran concerning posts made in a WhatsApp group in July and October 2019. A preliminary ruling determined the natural and ordinary meaning of the publications and held them defamatory at common law: Sivananthan v Vasikaran [2022] EWHC 837. At trial, the central issue was whether the claimant had proved serious harm under section 1 of the Defamation Act 2013. The defendant relied on statutory defences of truth, honest opinion and publication on a matter of public interest. The court first had to determine whether the serious-harm threshold was met.

1. Disposition. The claimant failed to prove that the publications caused or were likely to cause serious harm to his reputation. The court gave judgment for the defendant and did not analyse the statutory defences.
2. Statutory test. Section 1(1) of the Defamation Act 2013 creates a distinct threshold in addition to the common-law defamatory tendency of the words. Applying Lachaux v Independent Print Ltd; Lachaux v Evening Standard Ltd [2019] UKSC 27, the court held that the inquiry concerns actual or probable reputational impact on publishees, assessed by evidence and the facts of publication, rather than meaning alone. The claimant must establish causation for each statement sued upon.
3. Inference and publication. Serious harm may be established by inference, but an inferential case remains an evidential case and must not rest on speculation. Relevant matters may include the gravity and meaning of the allegations, the circumstances and scale of publication, the identity of publishees, likely attention by others and possible grapevine or percolation effects. In a small, closed group, the absence of direct evidence from publishees and evidence of likely onward dissemination is material. The fewer the original publishees, the more closely the court must scrutinise the proposed causal chain.
4. Individual causation. Each publication must independently satisfy the serious-harm requirement. Injury cannot be aggregated across multiple publications, and a claimant cannot rely on the effects of publications not sued upon to prove harm caused by the selected publications. A protracted campaign or existing dispute may make the causal impact of an individual publication less probable, particularly where the audience is partisan or already familiar with the allegations. Libel remains concerned with the effects of particular publications, not campaigns generally.
5. Application. The WhatsApp posts were short, impetuous extracts from a longer dispute. Some historical allegations were relatively grave but already familiar. The allegation that the claimant misled the future Prime Minister was patently improbable and unsupported. The group was small, there was no direct evidence of adverse impact, and the later complaints and press material were better explained by the defendant’s wider campaign than by percolation from the posts. The claimant’s own offence and distress did not prove reputational harm in the minds of others. The statements were therefore not defamatory within section 1 of the Act.

The judgment records the following prior procedural steps in the same proceedings:

• High Court (King’s Bench Division): A preliminary issues ruling determined the meaning of the publications and held them defamatory at common law: Sivananthan v Vasikaran [2022] EWHC 837.
• High Court (King’s Bench Division): At trial, the court held that serious harm had not been proved and gave judgment for the defendant.