Arron Banks loses Russian libel case against journalist Carole Cadwalldr

In a surprising ruling by High Court of London on 13th June, Arron Banks lost his libel case against journalist Cadwalldr.

Arron Banks, the British multimillionaire and co-founder of the Leave.EU campaign who bankrolled millions of Pounds into UKIP during 2016 EU referendum lost his libel case against investigative journalist Carole Cadwalladr. The highly anticipated ruling in Banks v Cadwalladr  [2022] EWHC 1417 (QB) was a test for press freedom in UK and outside. The verdict in the libel case is also significant for its immense impact on the ongoing conversation around public interest journalism and protection available to individual bloggers, freelance journalists to report freely on social media platforms.

The libel case is concerned over a TED talk titled "Facebook's role in Brexit- and the threat to democracy" delivered by Cadwalladr and a related tweet in which she spoke about Banks’s alleged ties to Russian money in funneling funds to the Leave.EU campaign. Carole was basically saying that Banks continuously lied about his relationship with Russia. 

She said “I am not even going to get into the lies that Arron Banks has told about his covert relationship with the Russian government. These remarks were made in a 2019 TED conference in Vancouver, Canada which was watched by over a million viewers.

You can watch Carole Cadwalladr's 2019 TED talk on 'fakebook's role in Brexit- and the threat to democracy' here. 

Banks claimed these comments on more than one occasion defamed him and caused serious harm to his reputation.

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 didhttps://t.co/T8ACxkpaL1

— Carole Cadwalladr (@carolecadwalla) June 24, 2019

Banks has all throughout denied any links with Russia and blames those accusations on the anti-Brexiteers. In 2016 Arron Banks made a huge donation worth at least  £8-9 million to the Brexit campaign which sparked the controversies surrounding his links to Russia. To date, Banks is the largest individual donor in UK political history. 

Issues raised in Banks v Cadwalladr

The essential issue for determination was whether Carole’s statements caused or was likely to cause serious harm to Banks’s reputation. If so, whether Carole successfully established a public interest defence to Bank’s claim.

The agreed issues for determination are as follows. 

Serious harm

i)                    Has the claimant proved that the publication of the statements has caused and/or is likely to cause serious harm to his reputation?

Public Interest Defence

ii)               Has the defendant shown that she believed that publishing the statement was in the public interest? (This is a subjective question for the court to decide by looking at the mind of the journalist at the time of publication)

iii)             If so, has the defendant shown that her belief was reasonable having regard to all the circumstances of the case? (A question to be determined objectively having regard to the mind of a reasonable person)    

iv)             If so, has there been a significant change in circumstances(National Crime Agency’s statement was published on 29 April 2020) since the original publication such that the defence in section 4 of the 2013 Act ceased to apply and, if so, when did any such change occur?

To successfully establish a defence of public interest all three questions must be answered affirmatively.

 Damages

v)                   If the claimant succeeds on liability in relation to the TED Talk and/or the Tweet, what sum should be awarded in damages?

Public interest in libel cases, a fundamental basis for investigative journalism

Carole initially rested her case on the defence of truthfulness under section 2 of Defamation Act of 2013 and the defence of limitation . She contended the single meaning Justice Saini earlier attributed to words of her statement as untrue.

Justice Saini in a preliminary ruling ([2019] EWHC 3451 (QB)) in 2019 ruled on the ordinary meaning of Carole’s statement to mean 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".

She argued that what she meant by her statements was not that Banks received Russian finance or that Banks lied about getting funds from Russian proxies, but the simple fact that Banks lied about the extent of his links that he had with Russia. She maintained that she was always careful to give the message that there was no evidence to support Banks has accepted funds from Russia.  

Truth is an absolute defence to a libel claim. There is prima facie no defamation if defendant proves a statement to be true. But it is a difficult defense to succeed. Since there is no evidence to back up Bank’s possible links to Russia, she was tempted to make an apology to Banks. 

“It was not my intention to make any such allegation and I accept that such an allegation would be untrue.” Carole said in a letter. 

Later Carole would drop the defence of truthfulness. Instead she pleaded a public interest defence under section 4 of the DA 2013. She took the stance that she was acting in the interest of British public when she made the statement in dispute. Public interest is a self-contained defence that is separate from truth defence. It does not focus on whether the statement is true or not. It merely looks into whether the publication can both subjectively and objectively be believed to have been published in the interests of public. 

The law on the defense of public interest in libel cases

The requirements under section 4 of the DA 2013 are three-fold.

• Is the statement complained of is on a matter of public interest?- Section 4(1) (a) of DA 2013

• Did the defendant at the time of publication believe the publication of the statement to be in public interest?- Section 4(1) (b)

• Is it reasonable for the defendant to have believed the statement to be in public interest?- Section 4(2)

The court must take into consideration all the circumstances of the case in determining these issues (s.4(2) of the 2013 Act). For example the court looks into public importance of the subject matter. whether it was reasonable for the defendant to believe so, how the defendant researched into the subject matter, the context, tone, seriousness of the publication and whether defendant made any efforts to verify information before he/she reported it. 

Did Carole's remarks caused serious harm to Bank's reputation?

After a five-day hearing the High Court in London ruled that Banks successfully established the higher threshold of seriousness required under section 1 of DA 2013 that Carole’s comments in the original publication of the TED talk caused or was likely to cause serious harm to his reputation. However owing to the significant change in the circumstances as from 29 April 2020(when the NCA made its findings public), the court had to reassess serious harm from that date onwards. Considering the small scale of viewership after 29 April 2020 and the declining importance of Brexit after 6 years, the court ruled that TED talk after the said date did not continue to cause serious harm or was not likely to cause serious harm to Banks's reputation. With regard to the tweet, Banks failed to establish that the tweet caused or was likely to cause serious harm to his reputation. 

“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”- Section 1 of DA 2013

This statutory requirement of serious harm (inclusive of historic and future harm) under section 1 of DA 2013 raised the bar for bringing in  a libel lawsuit and is one step up from the previous common law threshold of substantiality.  At common law a statement is defamatory if it has a substantially adverse effect on how the right-thinking members of the public treat the claimant. Under common law, before DA 2013 came into force, libel regime was seen as unduly favouring claimants that claimants did not have to show specific harm to his reputation as a result of the defamatory statement. Defamatory statement itself was sufficient to amount to libel unless defendant successfully pleaded a defence. 

Now under DA 2013, claimant must establish serious harm to reputation by actual facts inferred from circumstances and the context surrounding the publication of the defamatory statement. In this case, Banks's case for serious harm to his reputation rested on the gravity of the statement, the authoritative nature of TED platform and Cadwalladr as a UK journalist, evidence of reaction the statement received and the scale of publication. With regard to seriousness nature of the statement, both parties admitted that any serious harm is not at the most serious end of the scale such as in the case of child abuse claims or murder allegations. In relation to reactions Banks received, Justice Steyn ruled loss of business prospects consequent to the publication is of negligible nature. Gauged the scale of publication within the jurisdiction of UK the court decided publication to be substantial and is almost equivalent to that of a high circulation domestic newspaper. 

For understanding the concepts of UK libel regime under DA 2013, visit BrettWillson Blog here. 

Further Justice Steyn held that even if Banks had proven serious harm with regard to libel claims after 29 April 2020, Carole had successfully established a public interest defense under section 4 of DA 2013 that reasonably justifies the publication of her statement.

“I accept the TED talk was political expression of high importance, and great public interest in the strictest sense, not only in this country, but worldwide.” At para 140 of the judgment.

Accordingly Justice Karen Steyn dismissed Bank’s libel claims.

If Carole had lost her defence she would have had to pay as damages and legal costs a sum approximately between £750 000 and £1 million. And most importantly a victory for Banks would have been a terrible blow to the press freedom in UK and beyond.

What is SLAPP in libel cases?

Bank’s lawsuit is seen by press freedom lobbyists as a personal assault on Carole. Because Banks did not sue Guardian Media Group or TED or any other large media institution which had made similar allegations against him. Instead he chose to sue Carole personally. However Justice Steyn refused to label the lawsuit as a SLAPP. Justice Steyn said the suit is a legitimate court action brought by Banks to seek vindication and therefore it is not fair by Banks to call it a SLAPP (Strategic Litigation Against Public Participation). 

“In circumstances where Ms Cadwalladr has no defence of truth, and her defence of public interest has succeeded only in part, it is neither fair nor apt to describe this as a SLAPP suit” Justice Steyn said.

SLAPP is a term used to describe frivolous lawsuits brought by wealthy and the powerful as a strategy to silence and intimidate individual critiques. Carole as a freelancer had to fight a losing battle for three years, without the financial and legal support of any large media outlet. The professional and financial risks of defending such a lawsuit always remained high for Carole. In finding her legal fees she had to depend on a public legal defense fund that over 29 000 random people crowdfunded. 

The impact of the ruling

The judgement is a resounding victory for all freelance and investigative journalists. Guardian described the ruling as a timely shot in the arm for public interest journalism. The surprising verdict came in at a time when UK's libel regime is notorious for being a hotspot for libel tourism.  

Will Arron Banks successfully appeal the ruling? 

After the ruling Banks congratulated Carole over her court victory and said that he would "likely" appeal the judgement. Here's the catch though! The court found Carole's statements to be defamatory, yet some of them did not cause serious harm to amount to defamation under DA 2013. With regard to the one statement that was found  to have caused serious harm, Carole presented a successful defence of public interest. Carole's defence on public interest grounds was successful largely owing to National Crime Agency's investigation into Banks's donation to Brexit campaign. But the very same NCA findings said there is no evidence of any wrongdoing by Banks under Political Parties, Elections and Referendums Act 2000 (‘PPERA’) or Company law. In the course of the proceedings Carole also admitted that she had no evidence to support Bank’s alleged financial affairs with Russia. So a legitimate questiojn arises whether one can defame someone without sufficient evidence to support those claims. However just like in any other libel matter, public interest defence was all-too-powerful in this case. Despite lack of evidence to support Carole's allegations and withdrawal of defence of truthfulness, public interest defense single-handedly titled the balance in Carole's favor. Thus, when you look at the overall picture of the judgement, it is difficult to see how an appeal without any substantial points of law to run against public interest defence could reverse the ruling for Banks.

The judge felt sorry for Carole is how I would sum it up. Defamatory but no serious harm. I suppose falsely accusing someone of taking Russian money for Brexit doesn’t cut the ice. It’s likely I will appeal .. https://t.co/UOqbDR8Yyw

— Arron Banks (@Arron_banks) June 13, 2022

 

Who is Carole Cadwalladr? 

Carole Cadwalladr is a freelance writer who contributes for The Guardian and The Observer news papers. And she was the first journalist to uncover details about the Cambridge Analytical data scandal in 2016. She famously won the Orwell Prize for Political Journalism in 2018 for her investigative journalism on the role of big data in both Brexit referendum and 2016 US elections.