A victory for public interest journalism

On 13 June Arron Banks’ libel claim against Carol Cadwalladr was dismissed, in a significant victory for public interest journalism (Arron Banks v Carole Cadwalladr [2022] EWHC 1417 (QB)).

Banks is a businessman and founder of Leave.EU – the pro-Brexit group. Cadwalladr is a freelance journalist and writer.

Banks issued a defamation claim against Cadwalladr in July 2019 in relation to a TED talk Cadwalladr gave in April 2019 called ‘Facebook’s role in Brexit – and the threat to democracy’, in which she said: ‘And I’m not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian government.’

The second part of Banks’ complaint concerned a tweet published by Cadwalladr in June 2019 in which she linked to her TED talk and said: ‘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 the Russian govt. Because he did.’

The court had to determine whether the words made by Cadwalladr had caused (or were likely to cause) serious harm to Banks’ reputation within the meaning of section 1 of the Defamation Act 2013. If so, the court then had to decide whether Cadwalladr had a public interest defence to the claim pursuant to section 4 of the 2013 act.

A preliminary issue hearing took place on 4 December 2019 before Saini J to determine the single meaning of the words subject to Banks’ complaint. The judge found that the meaning of the words complained of in both the TED Talk and tweet was as follows: ‘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.’

On the back of this finding, Cadwalladr dropped her truth defence as the meaning found at the hearing was not the meaning she intended to convey, and consequently was not one which she could prove to be true. The trial therefore proceeded on the basis of a public interest defence only.

Trial

Serious harm

For a publication to be defamatory it must cause or be likely to cause serious harm to the reputation of the claimant (section 1 of the act). Banks argued that he had suffered very serious harm, pointing to the gravity of the imputation made and the scale of the publication. He also relied on the public reactions to the TED talk and tweet.  

Cadwalladr argued that Banks had not proven that he had suffered or was likely to suffer serious harm, or that any such harm could be properly characterised as serious.

On balance, the judge accepted that the TED talk had caused serious harm to Banks’ reputation. A sizeable number of people who knew or would have come to know Banks would have viewed the TED talk and believed what was said about him, lowering his reputation in their eyes.

However, the judge dismissed Banks’ claim in respect of the tweet as the serious harm threshold was not met. The judge noted that the vast majority of Cadwalladr’s followers on Twitter were likely to be ‘within her echo chamber’ and would most likely not have thought highly of Banks at the time. They were also people whose opinion was said to be of no consequence to Banks.

Having proved serious harm with respect to the Ted talk, the burden then shifted to Cadwalladr to prove a successful public interest defence.

Public interest

In order to satisfy the public interest defence outlined at section 4 of the act, Cadwalladr needed to positively answer three questions:

i)    Was the statement complained of on a matter of public interest, or did it form part of such a statement?

ii)    If so, did the defendant believe that publishing the statement complained of was in the public interest?

iii)    If so, was that belief reasonable?

As to the first question, the judge accepted that the TED talk was a political expression of high importance and of great public interest worldwide. As to the second, the judge had no doubt that Cadwalladr honestly believed that the publication was of the highest public interest.

The judge then turned to assessing the reasonableness of Cadwalladr’s belief. This section of the judgment concluded that it was reasonable for Cadwalladr to regard the words complained of as forming part of the important public interest story she was telling and that it was appropriate to make proper allowances for her editorial judgement.

In libel cases, a defendant can rely on their own understanding of the words they published (providing it is reasonable) as part of a public interest defence. In this case, the judge held that Cadwalladr did not appreciate that her words could carry the single meaning found by Saini J. The public interest defence fell to be assessed on a less damaging meaning (albeit still a serious one).  

The public interest defence had to be re-tested in so far as the continuing publication of the TED Talk after 29 April 2020 was concerned. This is because a joint statement was made on that date by the Electoral Commission, Banks and others which accepted the conclusions made previously by the National Crime Agency. The commission found no evidence that any criminal offence had been committed by Banks and had seen no evidence to suggest that Banks or his companies received funding from any third party to fund the loans to the Leave.EU campaign, or that he acted as an agent on behalf of a third party. In respect of the continuing publication, the judge found that while the public interest defence fell away on 29 April 2020 (as Cadwalladr had no longer had reasonable belief that the continuing publication was in the public interest), Banks failed to prove that this continuing publication had caused him serious harm. As such, Banks’ claim was dismissed in full.  

The claim is a significant victory for free speech and testimony to the bravery of journalists.

 

Elizabeth Wiggin is a senior associate at Wiggin, London