Cadwalladr vindicated – it isn’t a SLAPP, but that’s not enough to save Mr. Banks

Background

Arron Banks became one of the largest political donors in the history of UK politics when he contributed several million pounds to the Leave.EU campaign shortly before the Brexit referendum was due to be held. Carole Cadwalladr, an experienced investigative journalist, gave a TED talk on 15 April 2019 entitled “Facebook’s role in Brexit – and the threat to democracy”, in which she referred to Mr Banks and that donation, stating:

“And his group, Leave.EU – it also broke the law. It broke British electoral laws and British data laws, and it's also being referred to the police. And this man, Arron Banks, he funded this campaign. And in a completely separate case, he's being referred to our National Crime Agency, our equivalent of the FBI, because our electoral commission has concluded they don't know where his money came from. Or if it was even British. And I'm not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian government.”

Mr Banks subsequently brought a defamation claim in relation to the TED talk, as well as a subsequent tweet that Ms Cadwalladr published on 24 June 2019, which provided a link to the TED talk and commented:

“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.”

Ms Cadwalladr initially pleaded defences of truth (under section 2 of the Defamation Act 2013) and public interest (under section 4 of the Defamation Act 2013). Yet things took a turn at a preliminary hearing, when Mr Justice Saini determined the natural and ordinary meaning of the words in the TED talk and the tweet 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.”

Ms Cadwalladr thereafter withdrew her defence of truth, stating in an apology that this was not the meaning that she had intended to convey, and accepting that such an allegation would be untrue. Accordingly, the issues left to be determined at trial were:

(a) whether the TED talk and/or the tweet had caused, or were likely to cause, serious harm to Mr Banks’s reputation within the meaning of section 1 of the Defamation Act 2013; and

(b) if so, whether Ms Cadwalladr had a valid public-interest defence within the meaning of section 4 of the Defamation Act 2013.

Serious harm

Mr Banks succeeded in proving that the TED talk caused (and/or was likely to cause) serious harm to his reputation. The reasons cited by Mrs Justice Steyn were:

(a) It contained imputations of “serious, repeated dishonesty on the part of the claimant about serious matters, namely a secret relationship he had with a potentially hostile foreign power for the unlawful and improper purpose of accepting foreign funding of an electoral campaign”.

(b) Mr Banks had adduced evidence of the number of people who had viewed the TED talk. Although TED is an American platform, it was inherently probable that there had been substantial publication to viewers in England and Wales, at least equivalent to a high-circulation domestic newspaper.

(c) Despite the defendant’s attempts to argue that Mr Banks’s general reputation was as someone with a “well-known propensity to lie”, the judge found her evidence on that point to be “wholly insufficient”.

(d) Although Mr Banks had not provided any evidence from people who saw the TED talk and thought less of him as a result, the judge found this absence unsurprising in the circumstances and was willing to infer that a “sizeable number of people who knew or would later come to know Mr Banks, would have viewed the TED talk and believed what was said about him, lowering his reputation in their eyes”. The judge considered that this was a proper inference to draw given the extent of publication, the gravity of the single meaning, the serious nature of the TED talk, the fact that it was given by an award-winning investigative journalist, and the authoritative and credible nature of the international platform on which it was given (i.e. at the main TED conference).

For the tweet, however, the judge’s analysis differed in two fundamental respects:

(a) The number of people within the jurisdiction to whom the tweet was published was likely to be only a fraction of the number who viewed the TED talk. The judge considered that the normal inference, in the absence of a reason to think otherwise, would be that access to a tweet would peak at or shortly after the time of first publication, and the tweet was likely to be a long way down the defendant’s timeline. So there was “no probability of future harm” flowing from the tweet: the question was whether it had caused serious harm.

(b) The judge found that it could be reasonably inferred that the vast majority of the defendant’s followers on Twitter were “likely to be persons within her own echo chamber” and were likely to consist of people whose opinion of Mr Banks was of no consequence to him.

So the judge was not convinced that the tweet had caused, or was likely to cause, serious harm to Mr Banks’s reputation for the purposes of section 1 of the Defamation Act 2013.

The public-interest defence

Of the 416-paragraph judgment 315 paragraphs are dedicated to the handling of the public-interest defence. The judge analysed all of the factual background in considerable detail. To summarise her conclusions:

• In assessing the reasonableness of the defendant’s belief, the court had respect for the fact that the TED talk, as a whole, was a “serious contribution to the discussion of a subject that was of real and abiding public interest at the time of publication”. Moreover, the words complained of were themselves on an “important matter of public interest”. It was reasonable for Ms Cadwalladr to regard those words as forming part of the story that she was telling about the potential for targeted political advertising on social media to undermine democracy. At various points in the drafting process, Ms Cadwalladr had received editorial advice from TED and from her editors at The Observer.

• To succeed with a public-interest defence, a journalist must have a reasonable belief that it is in the public interest to make statement A, even if the words unintentionally conveyed imputation B (unless meaning B should have been obvious to the journalist). Ms Cadwalladr argued that she had not intended to advance the single meaning that Mr Justice Saini had attributed to the words she spoke, and that she had not appreciated that those words could bear such a meaning. This position was accepted by Mrs Justice Steyn at trial, who found that her intention was to convey that: (a) the claimant lied on more than one occasion about a secret relationship that he had with the Russian government; and (b) there are questions to be asked (i.e. grounds to investigate) whether the source of his donations was foreign funding, accepted in breach of the law on the funding of electoral campaigns.

The judge found that the single meaning was not so obvious that it was unreasonable for Ms Cadwalladr to have failed to appreciate it, and Ms Cadwalladr had reasonable grounds to believe that her intended meaning was true, as (in particular) Mr Banks had been dishonest about the extent of his meeting with the Russian ambassador, particularly in a press statement he had made in November 2017. She also had reasonable grounds to believe that he had been offered sweetheart deals by the Russian government in the period running up to the EU referendum: Mr Banks’s financial position, including the source of his large political donation, was opaque, and the Electoral Commission had investigated him and announced that it had reasonable grounds to believe that the source was not Mr Banks, but rather an off-shore company, with the matter then being referred to the NCA to investigate further.

Yet that position changed when the NCA released a statement on 24 September 2019 concluding that it had received no evidence to suggest that Mr Banks had committed any criminal offences in relation to the large political donation, or evidence to suggest that Mr Banks and his companies received funding from any third parties for it. The NCA’s statement was echoed on 29 April 2020 by the Electoral Commission in a joint statement that it released with Mr Banks. Once that joint statement had been made, Mrs Justice Steyn considered that it was no longer reasonable for Ms Cadwalladr to believe that it was in the public interest to assert that there were grounds to investigate whether the source of the donation was foreign funding in breach of the law, unless she referred to the NCA statement and/or the joint statement. By this point, Mr Justice Saini had also made his ruling on the single meaning of the words, so that meaning could no longer be safely ignored by Ms Cadwalladr. So, on 29 April 2020, the public-interest defence fell away and continued publication of the TED talk became unjustifiable.

In spite of this, Mrs Justice Steyn found that Mr Banks had failed to establish that the serious harm threshold was met from 29 April 2020 onwards, so no damages were payable. This is a point on which Mr Banks has been granted permission to appeal, as his lawyers say that serious harm falls to be assessed once and only once.

The SLAPP issue

Long before the trial, these proceedings received a great deal of attention in the news media and in Parliament because Ms Cadwalladr repeatedly asserted that the lawsuit was a SLAPP claim (a.k.a. a “strategic lawsuit against public participation”) designed to silence and intimidate her. Both in 2019 and again in January 2022 multiple organisations, including Index on Censorship, Article 19 and Reporters Without Borders, publicly called the proceedings out as a SLAPP and called for Mr Banks to end his “abusive” lawsuit. Their call is cited on the Parliament website as evidence of the need to control the threat of SLAPPs. In her judgment, however, Mrs Justice Steyn said that although Mr Banks’s claim had failed, his attempt to seek vindication through the proceedings was “legitimate”, and in circumstances where Ms Cadwalladr had no defence of truth, and her defence of public interest had succeeded only in part, it was “neither fair nor apt” to describe it as a SLAPP suit.

Comment

The findings on serious harm in relation to the tweet were surprising to many. For instance, while it is true that the publication was not on the same scale as that of the TED talk, Ms Cadwalladr is still an investigative journalist with a substantial following, and the evidence before the court was that the tweet had been re-tweeted 8,915 times (consequently appearing in the timelines of any followers of those 8,915 accounts) and been “liked” 20,261 times. In Riley v Murray the court was willing to infer serious harm to the reputation of Ms Riley as a result of 94 responses, 661 re-tweets and 1,764 likes. Ultimately this did not matter in the present case, as the judge commented that, even if the tweet had caused serious harm, the public-interest defence would have applied to it. Still, the case demonstrates that social-media defamation cases are still hard to predict with any certainty.

If anything, this case is a billboard for why calls for anti-SLAPP legislation should be treated with extreme caution. Accusing someone of abusing the English legal system is a serious allegation. The 19 organisations who called this case a SLAPP were evidently wrong, and worse still, their allegations have been put before Parliament. It is not clear whether Parliament has been misled, or whether those organisations have withdrawn the allegation and informed Parliament of their mistake. This is important, as the Government has announced its intention to introduce legislative reforms to combat SLAPPs based on the responses it received to a call for evidence over the use of SLAPPs in the British legal system. It is notable that several of the 19 organisations who characterised this claim as a SLAPP were among those who responded to the Government’s call for evidence, although we do not know whether they specifically referred to this case in their submissions.

A claimant might lose a defamation case, but that does not automatically mean that their attempts to clear their name were not genuine. In these proceedings, Ms Cadwalladr’s defence hinged on the fact that she did not appreciate that her words could bear the meaning that they were ultimately found to carry. It was only by bringing the litigation that Mr Banks was able to procure an apology and a retraction for the way in which the ordinary reader (or viewer) would have interpreted Ms Cadwalladr’s accusation.

Ultimately, this case shows that, on matters of public interest, the courts are willing to forgive some inaccuracies if the journalist has a reasonable belief that it is in the public interest to make the statement complained of. The defence under section 4 of the Defamation Act 2013 is one of the strongest tools in a publisher’s legal arsenal, and to come within it they need only demonstrate the level of professionalism to be expected of someone in their position. Yet, as this case demonstrates, the duty is an ongoing one, and if there are significant changes after an article (or TED talk) is published, it may be necessary to reconsider whether continued publication is in the public interest, particularly when the subject of a publication has complained about its content. It is noteworthy that following the change in circumstances, and despite the comments in this judgment and Mr Banks’s stated intention to appeal, the TED talk is (as at the time of writing) still being published in full on the TED website.