[Update: Carole Cadwalladr has applied for permission to appeal the £1m costs order at the Supreme Court]
Wednesday 18 May should go down as a dark day for journalism in the UK and a great one for litigious public figures with deep pockets.
Businessman and financial backer of the Leave.EU campaign Arron Banks has hit campaigning freelance journalist Carole Cadwalladr with a thumping legal action that has crippled her ability to function as a reporter.
That she had to face this battle alone for four years reflects poorly on the two publishers involved in the case: Guardian News and Media and TED, a non-profit organisation in the US that is dedicated to the spread of ideas.
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And it is now beholden on all news publishers to support Cadwalladr in any future appeal to the Supreme Court because the judgment against her threatens to gag us all.
On Wednesday, the Court of Appeal ruled that she must pay £1.2m towards Banks’s legal costs in addition to a £35,000 damages payment and whatever contribution she must make towards her own ongoing legal costs.
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The level of public concern about the case is reflected by the success of a second crowdfunded appeal that has raised more than £750,000, much of it in the days since the costs decision was made public. Even with an earlier appeal which raised £261,755, she still faces a potentially ruinous shortfall.
It has all been a huge price to pay for a freelance journalist who has been attacked over a statement that stemmed from investigative journalism into the activities of the biggest political donor in UK political history.
And it is a judgment that means Banks, and others like him, will be protected in future by a sort of cloak of invisibility. When the risks are so high, most publishers will choose less risky targets for their investigations.
Arron Banks versus Carole Cadwalladr: Why did he sue?
Cadwalladr was sued over comments made at a TED talk in the US, which was broadcast online in April 2019.
Banks took issue with these words in the talk: “And I am not even going to get into the lies that Arron Banks has told about his covert relationship with the Russian Government.”
At a preliminary hearing the judge held that, in the context of the talk, the words complained about meant: “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.”
The case rests not on what Cadwalladr said, but on this interpretation of her words.
Banks partially won his appeal because the Court of Appeal held that Cadwalladr’s public interest defence fell away after 29 April 2020 when the Electoral Commission made a statement that it accepted the National Crime Agency’s finding that there was no evidence Banks had committed a criminal offence or received funding from a third party.
The potentially ruinous costs and damages ruling relates purely to publication on the TED website after 29 April 2020 (something which Cadwalladr had no control over).
As she said herself: “Why didn’t Banks sue TED? Or The Observer which first published the words? And now I’ve been held personally liable for a video published by media org in a foreign jurisdiction protected by the first amendment.
“This case has been absurdity after absurdity, starting with Kafkaesque ‘meaning’ of words that had never passed my lips to now being held responsible for the continued publication of a talk that the Court of Appeal has established was lawful when I gave it.”
Why Observer publisher and TED should stand with Carole Cadwalladr
Cadwalladr was invited to speak at TED on the back of a British Journalism Award-winning investigation that revealed Cambridge Analytica had played a role in Donald Trump’s 2016 election campaign and the Brexit referendum of the same year using data harvested from 87 million Facebook users without their consent.
The TED talk was shared in advance with Guardian Media Group and signed off – after numerous drafts – by TED themselves.
Cambridge Analytica was a huge editorial success for Guardian News and Media and the company was clearly happy for Cadwalladr to bang the drum for the brand in the US at such a high-profile event.
Guardian Media Group and TED both now need to step and stand with Carole Cadwalladr in the name of principle and to ensure that future contributors to both their organisations can feel protected.
All UK news publishers should hope that Cadwalladr appeals to the Supreme Court against a Court of Appeal judgment that severely undermines the public interest defence so relied upon in investigative journalism.
Cadwalladr and The Guardian: ‘I should never have had to face this alone’
A spokesperson for Guardian News and Media said: “Carole Cadwalladr’s award-winning journalism has prompted worldwide debate about social media, privacy and political targeting. The very high costs award made against Carole despite her journalism having been found to be in the public interest is very concerning, and has the potential to stifle freedom of expression in this country.
“While the Appeal Court ruled in favour of Arron Banks on the issue of the continued publication of the Ted talk, the Court noted he had lost on the major issue of public interest, which had absorbed most of the time and money. In the light of this, the high level of costs awarded to Banks sets a chilling precedent and represents a major blow to public interest journalism.”
Asked why GNM has not backed Cadwalladr financially, a spokesperson said: “This case has never been about journalism published by GNM. We have continued to support Carole in a range of ways throughout the last three years.”
In response to this statement, Cadwalladr told Press Gazette: “It is preposterous to suggest the Guardian and Observer had nothing to do this talk.
“The judgment made it very clear that it was intimately involved in the production of this talk as well as the nearly three years of reporting behind it. Specifically, Mrs Justice Steyn noted in detail the contributions of four editors at the Guardian and Observer who reviewed the talk and/or offered editorial feedback in addition to the head of corporate communications. The judge also notes the Observer had previously published ‘essentially the same allegations and a very similar meaning’.
“Multiple freedom of expression organisations have issued statements that they believe this was a SLAPP case in which I was deliberately targeted as an individual outside of my news organisation. I have asked the Guardian to review their position because I believe that this ongoing denial will put further journalists at risk.
“As an organisation, it needs to understand that targeting an individual journalist in this way is a part of a recognised ‘playbook’ that has been used against multiple (mostly female) journalists around the world to stop their reporting and silence their voices. Its failure to acknowledge this and the new hybrid threat landscape that journalists face poses a risk to other journalists, I believe.
“I should never have had to face this alone or rely on crowdfunding support.”
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