Update on 24 June 2022 from PA:
Arron Banks has won a bid to appeal after losing his High Court libel claim against Carole Cadwalladr.
Sara Mansoori QC, for Banks, told the High Court on Friday that the judge had been wrong to find that the issue of whether the high-profile businessman had suffered “serious harm” needed to be decided again after he had previously proved it.
In written submissions, she said: “The claimant succeeded in discharging the burden of establishing that the publication complained of had caused and was likely to cause serious harm to his reputation.
“At that point, it was for the defendant to demonstrate that she had a defence to the original publication and/or its continuing publication.”
Gavin Millar QC, for Cadwalladr, opposed the appeal bid, arguing the judge “was correct to consider the application of the serious harm test afresh”.
However, Mrs Justice Steyn gave Banks the go-ahead to appeal on this point at the Court of Appeal, rejecting four other grounds.
She said: “I am going to grant permission. It does raise clearly an issue of law that has not been determined previously.
“There is a real prospect of success on that ground.”
Original story 13 June 2022:
Brexit donor Banks sued freelance journalist Cadwalladr over this phrase in a Ted Talk she gave in 2019: “And I’m not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian government.”
As of 16 December 2021 the Ted Talk had been viewed 4.3 million times, and as of 31 December it had been watched on Youtube one million times.
Banks also sued over a Twitter post on 24 June 2019 in which she repeated the allegation and shared a link to the 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.”
In a judgment handed down on Monday, Mrs Justice Steyn said the Ted Talk had caused serious harm to Banks’ reputation but the tweet had not, dismissing the latter part of the claim. This was because the opinion of Cadwalladr’s Twitter followers of Banks would be “of no consequence to him,” the judge said.
Mrs Justice Steyn said Cadwalladr had succeeded in her defence of the Ted Talk by establishing that it was reasonable for her to believe publication of the allegation against Banks was in the public interest.
Cadwalladr said on Monday morning: “I am so profoundly grateful and relieved. Thank you to the judge, my stellar legal team and the 29,000 people who contributed to my legal defence fund. I literally couldn’t have done it without you.” She added that it was a “huge victory for public interest journalism”.
Banks has said he is “likely” to appeal, adding: “The judge said what she said was defamatory but no serious harm was caused, this was about vindication and it’s clear what she said was wrong. The allegation about Russian money was always a hoax!”
‘Important matter of public interest’
Cadwalladr’s Ted Talk was based on years of reporting she had done for The Guardian and The Observer but Banks chose to sue only her. Press freedom organisations and advocates therefore described the case as a SLAPP (strategic litigation against public participation) designed to intimidate her out of reporting. Banks denied it was a “vexatious” or “bullying” claim.
Mrs Justice Steyn said: “In the Ted Talk Ms Cadwalladr made 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.”
The judge found that Cadwalladr “genuinely did not appreciate” her wording could carry the defamatory meaning as ruled on by an earlier judge.
Instead, the judge said, Cadwalladr had intended to convey the meaning that Banks “lied on more than one occasion about a secret relationship he had with the Russian government” and that “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”.
Mrs Justice Steyn said this meaning as intended by Cadwalladr was “less damaging” to Banks although “still a serious allegation”.
“In particular, she alleged outright that he had told lies about a covert relationship with the Russian government, as well as raising the question whether the source of his political donations was unlawful foreign funding.”
But she ruled that Cadwalladr had “reasonable grounds to believe that her intended meaning was true” because of the journalistic research she had done into Banks.
Mrs Justice Steyn said a statement given by Banks in November 2017 that his “involvement with ‘the Russians'” had amounted only to a single lunch was “wholly inaccurate”.
The judge went on: “Ms Cadwalladr regarded this as the pre-eminent lie, but it was also reasonable for her to believe that other statements Mr Banks made regarding his relationship with the Russian government were inaccurate.”
She added that “given the wider limits of acceptable criticism that apply to an important public figure such as Mr Banks” it would have been “wrong to expect a journalist to refrain from identifying such an inaccurate statement, particularly one given in writing in response to the announcement of an Electoral Commission investigation, as a lie unless the deliberate nature of the inaccuracy has first been proved to a standard that would satisfy a court.
“Moreover, Ms Cadwalladr specifically put to Mr Banks that it was not credible that he could not recall whether he had had one or multiple meetings, and that his press statement… was untrue. He chose not to comment.”
In her consideration of Cadwalladr’s allegation of a “covert” relationship, Mrs Justice Steyn added: “It is true that, to a degree, the relationship was overt. But as identified above there were many aspects of it that were undisclosed. It is evident that, in describing the relationship as covert, Ms Cadwalladr was conscious that some aspects of the relationship had been made public…”
‘Negligible’ evidence of business impact on Banks
The judge said the public interest defence in the Defamation Act 2013 had stopped applying once both the National Crime Agency published a statement in September 2019 finding no evidence of any criminal offences by Banks and the Electoral Commission accepted the findings of the NCA on 29 April 2020.
But although Mrs Justice Steyn said the 2020 acceptance had amounted to “a significant change of circumstances” for the case, she found that Banks had failed to prove he had been caused serious harm following this date, and so that part of his claim was dismissed.
She had noted worldwide viewership of the Ted Talk after 29 April 2020 was “close to a tenth” of the figure from 15 April 2019 when it took place. The judge also said that although the NCA decision “demanded appropriate respect”, that “is not the same as saying that it was beyond reasonable questioning or criticism”.
The trial was held in January at London’s High Court. Banks told the court Cadwalladr’s allegations affected his business dealings: “From a corporate standpoint, we were less successful in obtaining approval of funding than we had been previously and I consider that the Ted Talk and the fact that Carole had claimed she could prove what was said was true [contributed] to this.”
In her judgment Mrs Justice Steyn said there was “negligible” evidence that the Ted Talk “had any impact on Mr Banks’s reputation and prospects in the business sphere”. And she said his reputation was “obviously not harmed” among his friends and acquaintances who, Banks said, mentioned it to harm as “banter” and “another of Carole’s conspiracy theories”.
Of a number of negative comments about Banks on Cadwalladr’s fundraising page, which she used to help her fight the case, the judge said it was “highly likely that those who chose to support” her “are people amongst whom he had no reputation to be damaged and whose opinion of the claimant has no consequence of him”.
On the serious harm caused, Mrs Justice Steyn rejected the idea that Banks “would have had no or no meaningful general reputation to be harmed” in the eyes of the Ted Talk viewers. She added: “On balance, I am persuaded that it can be inferred 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.
“I consider that this is 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 (that is, at the main Ted conference).”
Judge rules Cadwalladr was reliable witness
Cadwalladr fought the case only using the defence of public interest. She previously dropped the truth defence after a judge’s ruling on the meaning of the words in question in the case. Cadwalladr told Press Gazette in November 2020: “He has ruled that when I said Arron Banks lied about his relationship with the Russian government, it was ‘in relation to acceptance of foreign funding’.
“But these are not words I have ever said. On the contrary, I’ve always been very clear that there is no evidence that Banks accepted Russian funding.
“I have a very robust defence based on the very strong public interest grounds of my reporting and that has not changed.”
Banks’s lawyer William McCormick claimed Cadwalladr was not a reliable witness of fact but Mrs Justice Steyn disagreed.
She said it was clear Cadwalladr found the case, and being cross-examined for several days, “very stressful indeed” and that “she was evidently anxious throughout”. The judge added that she felt Cadwalladr “gave truthful answers throughout” even though she “became more evasive”.
Although Cadwalladr made some errors in her evidence, the judge said this did not mean she was not a reliable witness, adding: “The inaccuracies in reporting her interview with Mr Banks do not go to the core of the defence, and it is obvious they were not intended to mislead.”
Pictures: Reuters/Hannah McKay and Press Gazette