The Court of Appeal's decision in the libel case of Arron Banks against Carole Cadwalladr, which partially reversed the High Court's decision, sheds light on the interpretation of the serious harm test under s1(1) of the Defamation Act 2013 (Section 1). This states that "A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant".
Background
Banks is a businessman, political donor and co-founder of the Leave. EU (Brexit) campaign. Journalist and writer Cadwalladr gave a TED Talk in April 2019 which was published on TED.com and included her saying "And I am not even going to get into the lies that Arron Banks has told about his covert relationship with the Russian Government". After Banks' solicitors sent her a letter of complaint, Cadwalladr Tweeted, linking to the TED talk: "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".
Banks sued for libel. The court made an early determination on meaning, stating that the TED Talk and Tweet meant 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".
In light of this (level 1) meaning, Cadwalladr abandoned her truth defence and apologised to Banks saying that it was not her intention to make any such allegation which she accepted would be untrue. She continued to rely on the public interest defence, based on her intended (level 3) meaning that Banks "had told lies about a secret relationship he had with the Russian government and there were questions to be asked about the legitimacy of the source of political donations he had made".
The change of circumstances - Phases One and Two
Following an investigation into Banks, the National Crime Agency announced in September 2019 that it found no evidence of any criminality whether under election or company law or that Banks or his companies had received funding from any third party, or that he acted as an agent on behalf of a third party. This was publicly confirmed and accepted in a joint statement in April 2020 by the Electoral Commission and Banks ('the Joint Statement'). The period after the Joint Statement was known as Phase Two, with the time before being Phase One.
Following these announcements, Cadwalladr took no steps to stop publication of the TED Talk or the Tweet or to attach any qualifying statement to either of them.
The first instance decision
The trial judge held:
- The online publication of the TED Talk caused serious harm to Banks' reputation in Phase One.This was because Cadwalladr had accused Banks of serious, repeated dishonesty about a secret relationship he had with a potentially hostile foreign power, and there had been substantial publication of the talk within the UK.
- The Tweet did not cause serious harm. First, it was only published to a fraction of people who saw the TED Talk. Second, because Cadwalladr's Twitter followers were likely to be "within her own echo chamber", have a low opinion of Banks and "likely to consist of people whose opinion of Banks were of no consequence to him".
- Banks had to prove that the TED Talk had caused him serious reputational harm for Phase Two. He failed to prove this for various reasons. First, it was only published to a fraction (about 10%) of the audience of Phase One. Second, the talk was about the EU referendum which had taken place nearly six years before the trial, and so had become less relevant.Third, most of those who viewed the TED Talk would, like Cadwalladr's Twitter followers, likely to be people supportive of her defence, within her own echo chamber and whose opinion was of no consequence to Banks.
- Cadwalladr succeeded on her public interest defence for Phase One – the topic was clearly on a matter of public interest and she had a reasonable belief that publication was in the public interest.
- However, after the Joint Statement (ie in Phase Two), it was no longer reasonable of her to believe that publication was in the public interest.
In conclusion, Banks had proved he suffered serious harm in Phase One, but Cadwalladr's public interest defence succeeded. However, for Phase Two, although Cadwalladr failed to prove the public interest defence, there had been no serious harm. This meant Banks' claim failed in both Phrases. He appealed.
Issues on appeal
There were three issues for the Court of Appeal to consider:
- Was it necessary to evaluate serious harm again from the point at which Cadwalladr's public interest defence fell away (ie Phase Two)?
- Was the trial judge wrong to decide that the harm to Banks' reputation was diminished because the relevant publications were to: (a) people in Cadwalladr's "own echo chamber"; and (b) people whose opinions of Banks were of "no consequence" to him?
- If the judge was wrong on issue 2, did this undermine her overall conclusions on who won for Phase Two? In other words, did Banks prove serious harm in Phase Two?
Court of Appeal decision
Did Banks have to prove serious harm again for Phase Two?
Under Section 1, a statement is defamatory only if and to the extent that its publication causes serious harm to reputation or is likely to do so, and not otherwise. So a statement is not defamatory unless its publication has that effect, regardless of whether some other publication does cause serious harm or because serious harm is caused by multiple publications taken as a whole. In the same way that the public interest does not necessarily endure forever, a claimant cannot succeed in relation to a later publication unless it causes serious harm. The same statement published over time may be defamatory and then cease to be after a certain point. That is the consequence of Section 1. Therefore the judge was correct that Banks had to prove serious harm separately for Phase Two.
Assessment of serious harm
"Echo chamber"
The fact that a publishee is politically opposed to the claimant or dislikes him or has a generally low opinion of him is irrelevant. Other publications (even by the defendant) of the same allegations are inadmissible. The judge was aware of this.
The Court thought that, by "echo chamber", the judge meant a closed environment in which the information people receive is merely repetition of the same things that they have heard or said before and already believe. However, there was no evidential basis to draw the inference that the TED Talk and Tweet conveyed information the audience already knew about and believed.
"No consequence"
The Court assessed whether the judge was right to decide that harm was diminished because the relevant publications were to people whose opinion of Banks was of "no consequence" to him". If this meant Banks was indifferent to the opinions of such people, this was wrong in principle; the test is whether Banks' reputation suffered serious harm. If it meant that Banks had a bad reputation in the eyes of these people which could have no consequences to him, there was no evidence to support this.
On both points, the judge had erred.
Was there serious harm in Phase Two?
Since deciding serious harm is an evaluative process, akin to discretion, it is a high hurdle to overturn a first instance decision. However, the judge's errors fatally undermined her conclusions in relation to the TED Talk in Phase Two. Serious harm was an inevitable inference from the evidence. This flowed from:
- The inherent gravity of the allegation - namely serious, repeated dishonesty about a secret relationship Banks had with a potentially hostile foreign power as well as accusations of breaching the law on electoral funding - and its natural tendency to cause serious harm.
- The scale of publication of the TED Talk - estimated to be at least 100,000 views for Phase Two in this jurisdiction, broadly equivalent to the circulation of a broadsheet national daily newspaper.
- Banks' prominent role in public life and business.
As regards the Tweet in Phase Two, the judge did not err. The Tweet will have moved far down Cadwalladr's Twitter timeline, so it was improbable people read it ten months later, let alone also clicked on the link and listened to the TED Talk.
Conclusion
Banks' appeal was dismissed save for his claim in relation to the TED Talk in Phase Two where he won. The court ordered damages to be assessed on this basis.
Comment
This case demonstrates how the evaluation of liability for defamation is fluid, as the status of a publication (on serious harm and the public interest defence for example) can change depending on the time it was published and due to changes in circumstances. This means that a timeline of events may be separated into phases, for which the claimant may have to prove serious harm separately and a defendant may have to establish they continued to hold a reasonable belief that publication is in the public interest.
If the allegations in question are serious enough and publication is widespread enough, this may be sufficient to prove serious harm in the absence of other evidence, which is usually difficult to obtain. The judge's concepts of an "echo chamber" and "no consequence" were not correct.
Where new information has come to light, publishers should assess whether their defences still apply. If that information undermines the reasonableness of their belief that publishing is in the public interest, then they should consider removing the otherwise defamatory content or qualifying it. Although claimants may welcome this, publishers may find that such an obligation is relatively burdensome to comply with.
