harm which was liable to be caused given the tendency of the words. That argument was accepted in the Court of Appeal. She also submitted, by way of alternative, that if the phrase referred to the factual probabilities, it must have been directed to applications for pre-publication injunctions quia timet. Both of these suggestions seem to me to be rather artificial in a context which indicates that both past and future harm are being treated on the same footing, as functional equivalents. If past harm may be established as a fact, the legislator must have assumed that "likely" harm could be also.
164 It is important to bear in mind, for the reasons given by Lord Sumption in that passage, that respondents are responsible only for harm to an applicant's reputation caused by the effect of each statement they publish in the minds of the readership of that statement. See Sivananthan v Vasikaran [2023] EMLR 7; [2022] EWHC 2938 (KB) at [45] (Collins Rice J); Amersi v Leslie [2023] EWHC 1368 (KB) at [150] (Nicklin J).
165 Further, "a relevant and potentially significant factor when deciding whether publication has caused serious harm to reputation is the scale of publication or, putting it another way, the total number of publications". See, by way of example only, Banks v Cadwalladr [2023] 3 WLR 167 at 182 [52] (Warby LJ). But "it is not a numbers game", because very serious harm to a person's reputation can be caused by limited publication of a defamatory statement.
166 In Wilson v Mendelsohn [2024] EWHC 821 (KB), Richard Parkes KC (siting as a judge of the High Court) helpfully summarised a number of relevant principles from recently decided English cases as follows at [241]:
(1) The 'harm' of defamation is the reputational damage caused in the minds of publishees, and may be (but does not have to be) established by evidencing specific instances of serious consequences suffered by a claimant as a result of the reputational harm.
(2) Serious harm may be shown by general inferences of fact, drawn from a combination of evidence about the meaning of the words, the situation of the claimant, the circumstances of publication and the inherent probabilities. That brings into play the scale of publication (but serious harm is not simply a 'numbers game'), whether the statement complained of is likely to have come to the attention of anyone who knew the claimant, and the seriousness of the allegations complained of.
(3) It is relevant to consider the risk of percolation of defamatory allegations, especially on social media. It may in such cases be very hard to identify unknown publishees who thought less well of a claimant.
167 Third party communications and comments posted online by those who have watched, heard or read the relevant publication can be evidence of reputational harm, to the extent they can be said to be a natural and probable consequence of the publication complained of. See Economou v De Freitas [2017] EMLR 4; [2016] EWHC 1853 (QB) at [129] (Warby J); Riley v Sivier
