Judgment was handed down on 13 June 2022 in the libel claim Banks v Cadwalladr ( EWHC 1417 (QB)), in favour of freelance journalist Carole Cadwalladr. A five-day trial took place in January 2022.
Arron Banks, businessman and founder of the pro-Brexit group, ‘Leave.EU’, brought the claim for defamation in relation to allegations made by Cadwalladr that he lied about his relationship with the Russian government. The statements complained of were made by Cadwalladr in a TED Talk, and subsequently in a tweet.
The decision is significant in the context of press freedom and freedom of expression and the development of important statutory provisions of the Defamation Act 2013 (the “DA 2013”).
The claim related to two publications by Cadwalladr:
In a TED Talk in April 2019 titled ‘Facebook’s role in Brexit – and the threat to democracy”:
“And I am not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian Government.” (the “TED Talk”); and
In a tweet (which included a link to the TED talk) in June 2019:
“Oh Arron. This is too tragic. Nigel Farage’s secret funder Arron Banks has sent me a pre-action letter this morning; he’s suing me over this TED talk. If you haven’t watched it please do. I say he lied about his contact with Russian govt. Because he did.” (the “Tweet”).
Banks claimed that the statements were false and defamatory, and sought damages and an injunction to stop the continued publication online.
Following a preliminary issues trial, the meaning of the two publications was held to be “On more than one occasion Mr Banks told untruths about a secret relationship he had with the Russian Government in relation to acceptance of foreign funding of electoral campaigns in breach of the law on such funding.” (see Banks v Cadwalladr  EWHC 3451 (QB)).
Cadwalladr relied on the public interest defence, pursuant to section 4 of the DA 2013. She initially sought to rely on the truth defence, pursuant to section 2(1) of the DA 2013, but subsequently withdrew this defence and sent an apology to Banks in March 2021 confirming that she did not intend to make the allegation (as contended in the meaning) and accepted that any such allegation would be untrue.
The agreed issues for determination at trial were therefore whether Cadwalladr had successfully made out her public interest defence, and in the alternative, whether Banks had demonstrated that he had suffered (or was likely to suffer) serious harm to his reputation as a result of publications (pursuant to section 1(1) of the DA 2013).
Public interest defence
Judgment was given in favour of Cadwalladr. She successfully argued a public interest defence in respect of the original publication of the TED Talk up until the date where it was apparent that she had no evidence in respect of the allegations (i.e. on 29 April 2020 when Banks and the Electoral Commission published a joint statement confirming the same (the “Joint Statement”)). It was concluded that up until this point, Cadwalladr had demonstrated that her belief that publication was in the public interest was reasonable.
The judge commented that freedom of expression in the political sphere is “at the very core of the concept of a democratic society”, accepting the defendant’s submissions that the TED Talk amounted to political expression of the highest importance that was of great public interest worldwide. The political context at the time of the TED Talk was highlighted as an important factor, specifically the reporting at the time of Russian interference in foreign elections.
In circumstances where there is continuing publication of allegations, a defendant must be able subsequently to make out the elements of the defence, i.e. it is not enough that it applied to the original publication. The judge found that the Joint Statement amounted to a “significant change of circumstances”, after which point the public interest defence was no longer available to Cadwalladr.
Serious harm requirement
Under section 1 of the DA 2013, the publications would be defamatory only if Banks could show that they would cause or be likely to cause “serious harm” to his reputation.
It was highlighted that there was only negligible evidence that the publications had any impact on Banks’ reputation and prospects in the business sphere. Therefore, his case on serious harm centred on evidence in respect of the extent and scale of publication, and the seriousness of the imputation of the allegations. The judge accepted that the lack of evidence from any person to the effect that their opinion of Banks was lowered as a result of the TED Talk was unsurprising, as any individuals with lowered opinions were not likely to put themselves forward to assist in his case.
It was accepted that it could be inferred that his reputation would be lowered in the eyes of a sizeable number of people, in light of the extent of the publication, the gravity of the meaning, the serious nature of the TED Talk and the credibility of both Cadwalladr and the TED conference. On this basis it was held that Banks’ reputation had suffered serious harm in respect of the TED Talk up until the point of the Joint Statement (i.e. during the period in which Cadwalladr could rely on the public interest defence).
However, the judge considered that the reputational impact publication of the TED Talk after the Joint Statement fell to be considered separately from the perspective of section 1. This is a complex area but this is a slightly surprising result. Technically, in defamation law, every view on the Internet or a tweet constitutes a separate publication. It is unlikely that any single view could by itself be considered to cause serious harm to the claimant’s reputation. However, the courts typically consider the aggregate impact of all the views of a tweet or a posting together when undertaking the section 1 assessment.
The judge here took a different approach. She appeared to consider all the views of the TED Talk up to the issuing of the Joint Statement were subject to one assessment under section 1 and the subsequent views subject to a separate assessment. The reason for this disaggregation was not explained and it a little hard to understand in the context of section 1.
In any event, for the period after the Joint Statement, Banks failed to demonstrate that his reputation had suffered serious harm as a result of the continuing publication of the TED Talk. For this reason, his claim was still dismissed despite the fact that Cadwalladr’s public interest defence fell away after this stage.
The judge also rejected Banks’ claim in respect of the Tweet because she did not consider that this was likely to meet the section 1 test. Again, this was slightly surprising in light of the 311,000 followers of Cadwalladr’s public Twitter account, and the fact there may have been retweets of the Tweet. But the judge held:
“it may reasonably be inferred that the vast majority of the defendant’s followers on Twitter “are likely to be persons within her own echo chamber” and “it’s probably right that they wouldn’t have thought very much of [the claimant] by that time”. In my judgment, those within the jurisdiction to whom the Tweet was published are likely to consist of people whose opinion of the claimant was of no consequence to him.”
First of all that seems a very sweeping assumption to make about all and every of a class of over 300,000 people. Second, just because many or most of them did have a reasonably low opinion of Banks, that surely does not mean that they couldn’t have formed an even worse opinion on the basis of the Tweet. This finding appears to build on (although it is not referenced) the approach of Mr Justice Warby in Alexander-Theodotou & Ors v Kounis  EWHC 956 (QB) that no serious harm could be established in respect of a Facebook post where the Claimants would have been identified by those who “were either dissatisfied ex-clients or others who will already have taken against them, so that no material harm was done”.
At first instance level there appears to be a developing notion that you can disseminate entirely false defamatory material to a cohort of people provided they are all sufficient set against the claimant.
The judgment also repeats the principle, as confirmed by the Supreme Court in Lachaux v Independent Print Ltd ( AC 612) that section of the 1 DA 2013 imposes a higher threshold of seriousness than the common law rules. It was highlighted that a claimant must demonstrate serious harm as a matter of fact and that “[s]ometimes inference may be enough, but it cannot always be so”.
The judgment has been lauded as a victory for the press, particularly in light of the judge’s comments around freedom of expression and specifically the “special importance of expression in the political sphere”.
However, Cadwalladr’s arguments that the claim amounted to a so-called “SLAPP” case (a strategic lawsuit against public participation) that was designed to silence and intimidate her were explicitly rejected in the judgment. Although it was acknowledged that the proceedings had caused Cadwalladr a great deal of personal stress, not least because she was being sued in a personal capacity as a freelance journalist, the judge commented that Banks’ use of the proceedings to attempt to seek vindication was legitimate. She highlighted the fact that Cadwalladr had accepted that the allegations were unfounded and that her public interest defence had succeeded only in part, meaning that it was “neither fair nor apt” to characterise it as a “SLAPP” suit. This is an interesting comment in the context of increased scrutiny and criticism surrounding UK libel laws and in light of the UK government’s ongoing consultation into the use of “SLAPPs”, where views have been sought on a range of proposals including the potential strengthening of the public interest defence. The judgment also serves as a reminder to journalists of the law in respect of continuing publication. As the majority of libel cases are now brought in respect of online publications, journalists should take care to ensure that, should there be a change to the factual circumstances in relation to their allegations, they may subsequently not be able to avail themselves of a public interest defence.
The importance of evidence gathering is also highlighted in this judgment. Considerable weight was placed not only on witness evidence, but also on the circulation figures of the publications. The collection of this type of evidence, both immediately post-publication and continually up until trial, can be of crucial significance to a claim, from both a claimant and defendant perspective.