The serious harm test for defamation should be a “one-off exercise” and should not be revisited following a change in circumstances, a lawyer for Arron Banks has argued in his libel appeal against journalist Carole Cadwalladr.
[UPDATE: Arron Banks wins Carole Cadwalladr libel appeal and set to receive damages]
The barrister also objected to a High Court judge’s decision that a tweet about the Brexit donor did not cause him serious harm because it was published to Cadwalladr’s followers whose opinion “was of no consequence to him”.
In June the Brexit donor lost his case against Cadwalladr, who said in a 2019 Ted Talk he had told “lies… about his covert relationship with the Russian government” and repeated the claim in a tweet.
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Cadwalladr won using the public interest defence as High Court judge Mrs Justice Steyn decided it was reasonable for her to believe what she said was in the public interest – even though it caused harm to Banks’ reputation.
Banks’ appeal centred around the judge’s finding that Cadwalladr’s public interest defence no longer applied from April 2020 when the Electoral Commission accepted an earlier finding from the National Crime Agency that there was no evidence he had committed any criminal offences.
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The judge said that Banks had failed to prove he had been caused serious harm after this “significant change in circumstances”, however, as most of the views of the talk had already happened.
At the Court of Appeal on Tuesday, Benjamin Williams KC, on behalf of Banks, argued that the serious harm test is one “threshold test at the outset” and that this does not need to be under “constant review”.
Williams said: “The analysis of whether or not there has been serious harm is a one-off exercise having regard of the consequences of the publication holistically. That is our case.”
Gavin Millar, representing Cadwalladr, argued that Banks’ case amounted to an attempt at a “complete re-argument of the case”, adding: “This court is not supposed to be a place [where] the claimant can have a second bite of the cherry.”
Cadwalladr ‘doubles down’
Cadwalladr wrote a letter of apology to Banks in March 2021 in which she said: “It was not my intention to make any such allegation and I accept that such an allegation would be untrue,” referencing the meaning of her words as determined at an earlier hearing by Mr Justice Saini. She dropped the truth defence because of this ruling on meaning.
But Williams said Cadwalladr has “done nothing at all to bring that concession and apology to public attention”, noting that the Ted Talk and tweet both remain live and that Cadwalladr continues to repeat allegations about Banks that are “misleading the public”.
Because of Mrs Justice Steyn’s ruling, he is unable to obtain any type of injunction, Williams added, claiming this was an “indication something has gone wrong in the lower court”.
He pointed to the fact Cadwalladr had “doubled down” at 10pm on Monday night, just over 12 hours before the appeal hearing began, in a new series of tweets: “Tomorrow, Arron Banks’s lawyers will try to overturn a minor point of the judgement against him. What this will not & cannot change is the *facts*. A High Court judge found Banks had a close & covert relationship with Russian officials in run-up to Brexit.
“What I want to know is why UK govt swept evidence of years of Kremlin influence operations under the carpet…” Williams said the question of whether this had broken the terms of her apology may be “an issue for the future”.
Williams suggested Banks deserved damages for vindication if he is successful on any of the points raised during the appeal hearing.
Williams said Banks and his team take “no issue” with the idea that the Ted Talk was an important contribution to the debate on a matter of public interest – the impact of social media on the Brexit referendum.
But, he said, the talk contained a “gratuitous” line about Banks that Cadwalladr subsequently “doubled down” on in a tweet.
Williams said Banks accepts he is a “controversial public figure” and said he and Cadwalladr could both “fairly be described as polarising or Marmite… and that comes with some cost”.
However, he went on, there is a “fundamental qualitative difference” between being thought of by a section of the public as having bad political opinions versus being a bad faith political actor and conduit for a foreign regime that was poorly thought of in the UK following the Salisbury poisonings in 2018.
Echo chamber is ‘completely unsafe premise’
Williams also requested permission to appeal over two further points – the fact that the tweet and the Ted Talk after the Electoral Commission publication did not cause Banks serious harm.
Mrs Justice Steyn had found that those who saw Cadwalladr’s tweet were “likely to consist of people whose opinion of [Banks] was of no consequence to him”, basing this on the idea that her Twitter following would constitute an “echo chamber” in which people shared similar views.
Williams took issue with this, however, giving Banks himself as an example of someone who follows Cadwalladr on Twitter but disagrees with much of what she says. He said the judge’s reliance on the echo chamber idea was a “completely unsafe premise”.
He also said that even though people may have had a low opinion of him due to his political opinions and the way he conducted himself during the Brexit referendum, it is still a leap for them to believe him a bad faith actor who broke the law.
He noted that many people would be interested to see the tweets of a “respected journalist” who had won the Orwell Prize and written on matters of public interest. Cadwalladr currently has more than 713,000 followers on the platform, up from about 311,000 in 2019 when Banks launched this legal action.
There “certainly was not evidence that she was broadcasting to a choir that was capable only of singing in unison,” Williams said.
He suggested that the trial judge had underestimated the number of people who may have seen the tweet from outside Cadwalladr’s following because of retweets and the potential that it appeared in Google search results.
However, Millar said: “It is not accepted that there was any evidence for example that you could get the tweet on Google or anything like that. There was no evidence of that at all. All we had was the principle that the tweet drops down into oblivion early in its life and gets suppressed further and further down the chain.”
The judge had also noted that the tweet was seen by only a “fraction” of the number who watched the Ted Talk, which had been viewed more than five million times by December 2021. But Williams said the audience of the tweet was still comparable to or larger than that of a UK regional newspaper.
“On any view, it is a publication of considerable scale,” Williams said. “It may be smaller than the Ted Talk but it is still a matter of mass publication.” Millar criticised some of Williams’ workings, however, saying for example that there could be some double counting in the people who saw the tweet and that there was no evidence regarding how many people in this jurisdiction of England and Wales saw it after the defence lapsed.
Williams compared this issue of scale to Countdown star Rachel Riley’s successful libel case against blogger Mike Sivier last year, following a judgment also by Mrs Justice Steyn that found the serious harm test can be met following publication to a relatively small number of people. Williams also contended that the allegation in that case – that Riley harassed a 16-year-old girl – was less serious than the contention that Banks was colluding with Russians to harm democracy in the UK.
“This is a troubling contrast which underpins me having the temerity to say that this is a case where the judge is completely wrong,” Williams said, later adding: “You put Sivier next to this case and you cannot understand how they could be the decisions of the same judge.”
Williams also suggested it should not matter if the opinions of Cadwalladr’s followers were of “consequence” to Banks and, even if so, “that was not his view… he brought this action at huge expense”.
He gave the example that Cadwalladr herself may have disregard for the readers of the Daily Telegraph but would still take objection if the newspaper wrote falsehoods about her.
There were “hundreds” of “hurtful social media reactions” and an “avalanche of bile” towards Banks, which Williams brought up because “although of course the statutory test is not won on whether you have been hurt, it may be evidence of whether serious harm has been suffered”.
Regarding the Ted Talk following the end of Cadwalladr’s public interest defence, Mrs Justice Steyn had estimated that the number of viewers after this part was about a tenth of who had already watched it.
But Williams said: “Ten per cent of the readership of a high circulation daily newspaper is still hundreds of thousands of people,” noting that the approximately 750,000 views after 29 April 2020 were “far more than in other cases where serious harm was inferred in respect of people’s grave allegations”.
He also pointed out that the Ted Talk could not be seen as being seen by only Cadwalladr’s “echo chamber” because part of the reason for delivering the talk – titled “Facebook’s role in Brexit – and the threat to democracy” – was for her reporting to reach a wider audience.
President of the King’s Bench Division Dame Victoria Sharp, Lord Justice Singh and Lord Justice Warby, who heard the case on Tuesday, reserved their judgment to a later date.
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