No SLAPP – Banks wins in part on appeal over Cadwalladr TED talk

Background

In her TED talk on 15 April 2019 entitled “Facebook’s role in Brexit – and the threat to democracy”, Carole Cadwalladr made the following comments about Arron Banks:

“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.”

The meaning of those words was ruled to be that “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 denied that this was her intended meaning, and she had already accepted that such a meaning would be untrue.

Mr Banks also complained about an associated tweet by Ms Cadwalladr on 24 June 2019, which: (a) also accused him of lying about his contact with the Russian government; (b) provided a link to the TED talk; and (c) encouraged readers to watch it.

High Court hearing

The trial took place before Mrs Justice Steyn. Although Mr Banks established that the initial publication of the TED talk was likely to have caused serious harm to his reputation, the court found that Ms Cadwalladr had reasonable grounds to believe that it was in the public interest to publish the words complained of. Yet public-interest defences can expire if circumstances change and a defendant continues to publish material when it is no longer reasonable to believe that it is in the public interest to do so. Steyn J therefore ruled that the public-interest defence in this case fell away on 29 April 2020, when the Electoral Commission released a statement accepting the findings of the NCA, who had found no evidence to suggest that Mr Banks committed any criminal offences in relation to his political donation, or that he received funding from third parties for it.

Although the High Court judgment did not use this term, the Court of Appeal judgment refers to the period of publication before 29 April 2020 as “Phase One” and the period afterwards as “Phase Two”. In summary, the High Court found that, while continued publication of the TED talk in Phase Two was no longer in the public interest, Mr Banks had failed to demonstrate that the publication during Phase Two caused or was likely to cause serious harm to his reputation, so he had no claim in defamation for that phase. [2]

Appeal

Mr Banks appealed on three grounds:

• ‍Ground 1 – The judge was wrong to hold that the issue of whether or not a statement has caused (or is likely to cause) serious harm to a claimant’s reputation needs to be determined again from the date on which the defendant’s public interest defence falls away.‍
• Ground 2 – The judge was wrong to hold that Mr Banks had not proved that the tweet caused (or was likely to cause) serious harm to his reputation.‍
• Ground 3 – The judge was wrong to hold that the publication of the TED talk since 29 April 2020 had not caused (and was not likely to cause) serious harm to his reputation.

Appeal decision

Ground 1

Lord Justice Warby noted that each time a statement is communicated to someone other than the claimant, it counts as a separate “publication”.  In the case of the TED talk, that meant that there were separate publications to each viewer who watched it, and it would be wrong to assess the harm to the claimant’s reputation by reference to those who watched the TED talk while the defendant had a valid public-interest defence. So ground 1 was unsuccessful.

Ground 2

The High Court had ruled that the serious harm in the tweet was diminished because those who viewed it were likely to be persons within Ms Cadwalladr’s “own echo chamber”. On appeal, Warby LJ found that it might be possible for a publisher to present evidence that their followers on Twitter are likely to hold similar opinions to them (including in relation to the relevant sector of a claimant’s life), in which case the trial judge’s “echo chamber” comment would have been permissible, but that was not the case here and in fact it was not an argument which Ms Cadwalladr had attempted to rely on. Ms Cadwalladr had merely attempted to prove a pre-existing bad reputation by reliance on earlier publications, which is impermissible under the rules of evidence.

While these findings on serious harm will still be relevant considerations in future cases involving social media, they were not enough to overturn the trial judge’s decision on ground 2. The Court of Appeal stood by the presumption that publication of the tweet peaked around the time it was published, and that by the time the public-interest defence fell away the tweet would have fallen down the defendant’s timeline and out of view. So ground 2 of the appeal failed.

Ground 3

Warby LJ found that:

• It had been wrong for the High Court to decide that the serious harm in the TED talk (as with the tweet) was diminished because those who viewed it were likely to be persons within Ms Cadwalladr’s “own echo chamber” and were likely to consist of people whose opinion of Mr Banks was of no consequence to him.
• As to the “echo chamber”, it was irrelevant whether people who viewed the TED talk had a generally low opinion of Mr Banks. [3] The proper question was whether those people considered that Mr Banks already had a bad reputation in the relevant “sector”of his life. In this case, the relevant sector was taking foreign money in breach of electoral law and lying about it.
• The High Court’s finding that harm to the claimant’s reputation in the eyes of these publishees was of “no consequence” to him was also unsustainable. Whether or not the claimant cared what these publishees thought was legally irrelevant to the issue of whether serious reputational harm was established. [4] A person’s opinion might be of “no consequence” to the claimant if it could not have a practical impact on his life, but there was no evidence to support such a conclusion in this case.
• In the case of the TED talk, the trial judge’s errors in assessing serious harm had “fatally undermined” her conclusion, meaning that her decision had to be overturned in respect of Phase Two. There was extensive evidence of publication to people in this jurisdiction during this phase, equivalent to the circulation of a broadsheet national daily newspaper. The claimant has a prominent role in public life and business, and the allegation was a serious one involving serious, repeated dishonesty and breach of electoral law, which was inherently likely to cause serious reputational harm.
• Accordingly, ground 3 succeeded. Judgment was entered for Mr Banks in relation to the TED talk, with damages to be assessed for UK publications between 29 April 2020 and the date of judgment.

Comment

At paragraph 20 of the Court of Appeal judgment, Warby LJ noted that the High Court judgment had “three main sections, and fifteen sub-sections, running to 416 paragraphs”. He added: “The narrow scope of the issues before us however means that I can concentrate on relatively small portions of the judgment.” Interestingly, although it was not a point of the appeal, he then immediately highlighted Steyn J’s comments in the original judgment that it was neither fair nor apt to describe this case as a SLAPP suit, and that the claimant’s attempt to seek vindication through these proceedings was legitimate.

The High Court’s comments about serious harm (e.g. about publishees in the defendant’s own “echo chamber” whose opinion was of no consequence to the claimant) had the potential to create confusion among practitioners in this field. Indeed, even the Court of Appeal appeared to be somewhat unclear as to the precise nature of the point that the High Court had intended to elucidate. So this judgment serves as useful clarification as to the “echo chamber” point.

As with the decision at first instance, the judgment reinforces that, in the digital world, it is important to consider whether certain publications should be taken down or amended if there is a change of circumstances affecting the underlying subject matter, as there clearly had been in this case.

‍

Article written for Entertainment Law Review.