Daniel Miller & Anor v Luke Turner

In defamation, serious harm under section 1 of the Defamation Act 2013 requires proof that the particular publication caused, or is likely to cause, serious reputational harm through a legally relevant chain of causation. Grave meanings, publication figures and evidence of general reputational damage are insufficient without an evidential basis linking the publication to the harm. Harm cannot be established by indiscriminate aggregation of other imputations, publications or third-party conduct.

In harassment by speech, the course of conduct must cross the high, quasi-criminal threshold identified in Majrowski v Guy’s & St Thomas’s NHS Trust. Speech may be protected even when it shocks, distresses, alarms or offends. Context, gravity and the importance of freedom of expression must be assessed holistically.

The claimants, Daniel Miller and Nina Power, sued Luke Turner in defamation over 16 tweets and a webpage published between October 2018 and August 2019. The meanings of the publications had been determined at a preliminary issues trial in the same litigation, including allegations of antisemitism, threats, harassment and a false allegation concerning a publication by Mr Miller.

Mr Turner counterclaimed in harassment, alleging that the claimants had pursued a course of online conduct over about a year. The court considered whether the claimants had proved serious harm under section 1 of the Defamation Act 2013, and whether the counterclaim satisfied the objective and quasi-criminal gravity threshold under the Protection from Harassment Act 1997, taking account of freedom of expression.

1. Defamation claim dismissed. The claimants failed to prove that the particular publications complained of had caused, or were likely to cause, serious harm to their reputations under section 1 of the Defamation Act 2013. The court accepted that the imputations were grave, but serious harm is a factual and evidential question. It requires a legally relevant cause-and-effect link between the publications and serious reputational harm to third-party publishees.
2. The approach in Lachaux v Independent Print Ltd [2020] AC 612 did not establish a standalone inferential rule. Meaning, the claimant’s situation, the circumstances of publication and inherent probabilities are evidential matters from which factual inferences may be drawn. Here, low engagement, the partisan nature of the exchanges, competing causes of reputational damage, prior similar publications and the absence of publishee evidence prevented the necessary inference.
3. The court was not required to determine the statutory defences. It nevertheless observed that the allegation that Mr Miller had published a blogpost advocating state-mandated euthanasia of disabled people was factually untrue, and that Mr Turner accepted the mistake.
4. Harassment counterclaim dismissed. The claimants’ conduct was targeted at Mr Turner and objectively amounted to more than a vehement contest of ideas. It included persistent personal abuse, attacks on his rationality and mental health, aggressive imagery and group participation, and could fairly be described as bullying. But the conduct had to satisfy the high threshold of misconduct of a quasi-criminal order under Majrowski v Guy’s & St Thomas’s NHS Trust [2007] 1 AC 224, while the court gave particular weight to freedom of expression under section 12 of the Human Rights Act 1998.
5. Although the conduct had oppressive, alarming and offensive qualities, the alleged menace and antisemitic undertow were too occasional, intangible, diffuse and unconsolidated to make the course of conduct quasi-criminal. The evidence did not establish a resolved engagement with physical violence or objectively recognised antisemitic hate speech sufficient to cross the threshold. The court therefore dismissed both the claim and counterclaim.

The judgment records that a preliminary issues trial in the same litigation determined the meanings of the publications and whether they were statements of fact or opinion: [2021] EWC 2135 (QB). This judgment determined the merits of the defamation claim and the harassment counterclaim.