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January 14, 2022updated 30 Sep 2022 10:56am

Arron Banks suing Carole Cadwalladr for libel is free speech concern, High Court hears

By Charlotte Tobitt

[UPDATE: Carole Cadwalladr wins libel battle with Arron Banks using public interest defence]

Prominent Brexit donor Arron Banks’s libel case against journalist Carole Cadwalladr should be a concern “to anyone who cares about freedom of speech in this country”, the High Court heard on Friday.

However millionaire businessman Banks, who made the UK’s biggest ever single political donation ahead of the Brexit referendum, insisted the case was not a “vexatious” or “bullying” SLAPP suit.

Banks is suing Cadwalladr, a freelance journalist who has frequently worked for The Observer, over one sentence of a Ted Talk and one tweet. It has culminated in a trial which began on Friday at London’s High Court.

[Read latest: ‘I did not think I was saying anything controversial’, Carole Cadwalladr tells court]

Cadwalladr said in an April 2019 Ted Talk, which was primarily about Facebook’s role in the Brexit referendum: “And I’m not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian government.” According to Banks’s legal team the talk has been viewed around 5.3m times.

A tweet posted two months later saw Cadwalladr repeat the same allegation and encourage people to watch the Ted Talk as she revealed Banks’s intention of legal action to her followers.

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Banks’s case has repeatedly been described by Cadwalladr, her allies and numerous press freedom and free expression groups as a SLAPP (Strategic Lawsuit against Public Participation), meaning a libel action brought with the intention of silencing its target.

[Read more: SLAPP lawsuits aiming to silence journalists on the rise]

Gavin Millar QC, representing Cadwalladr, told the High Court the case was a “concern to us and should be to anyone who cares about freedom of speech in this country”.

He added that Cadwalladr, who has had to crowdfund hundreds of thousands of pounds to defend the case as she fears it could make her bankrupt, believes Banks’s action was designed to “stymy her investigations about him and make other investigative journalists wary about continuing theirs”.

As the trial began 17 groups, including Reporters Without Borders, the Committee to Protect Journalists and Index on Censorship, put out a joint statement saying the case was aimed at “intimidating and silencing” Cadwalladr. “We… unreservedly reiterate our support for Cadwalladr as she continues to defend her public interest work,” they said.

However William McCormick, representing Banks, told the court that any attempt to label the case “as bullying or a SLAPPs suit or vexatious” would be wrong.

He said: “The defendant has characterised this action as a SLAPP suit… it is no such thing and she could not reasonably have thought it was such.

“As she now accepts, it is being brought in respect of an allegation which she accepts was false, which she does not contest was a serious allegation to make against a man, and which has been published on a massive scale… To suggest it was issued in bad faith simply to stop her reporting is a complete fabrication.”

And Banks said in his witness statement: “Carole has subsequently accused me of bullying her, harassing her and using this lawsuit to intimidate and silence her as part of a SLAPP lawsuit… I was at a loss to understand how Carole could reasonably suggest I was operating a SLAPP policy. I considered her criticism to be unfair. I was not sure how else I was expected to correct the record and I certainly cannot do so if she insists on being able to repeat false claims.”

Cadwalladr is defending the case on the grounds that she was speaking about “matters of utmost public interest relating to the integrity of democratic processes” after conducting reasonable due diligence.

Her case is that there is “no overriding public interest which would justify sanctioning and placing restrictions on the high value political speech at the heart of this case”.

McCormick told the court he did not dispute that Cadwalladr was speaking on matters of public interest – including the debate about Cambridge Analytica and Facebook data, and whether there may have been Russian or other foreign funding involved in Brexit.

But he said the defence did not mean a journalist can say “I am entitled to say effectively what I like and the court should not prevent me from repeating [it]”.

McCormick added: “We say that at the time she gives the Ted Talk she fails the Section 4 public interest test [of the Defamation Act 2013] because she cannot reasonably have believed what she said about my client was in the public interest.”

Cadwalladr has previously withdrawn the defences of truth and limitation after a judge ruled that her words meant Arron Banks lied about his relationship with the Russian government ‘in relation to acceptance of foreign funding'”. She told Press Gazette at the time: “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.”

McCormick said on Friday: “It is often said that there is no public interest in the publication of false material. It appears Ms Cadwalladr’s case is that it is.”

Millar noted that the court must make allowances for editorial judgment under Section 4. He said the comment about Banks was an “important part” of the talk and “falls clearly within the margin of journalistic/editorial judgment”.

He said Cadwalladr made the editorial decision to include Banks in the talk because he was relevant to the relationship between the Trump and Leave.EU campaigns, which she considered “helped to convey the public interest issues to an international audience in an engaging way”.

She also felt there were “compelling public interest reasons” to refer to his relationship with the Russian government, and that she believed the allegations she was making were “true on the basis of the extensive investigations she had undertaken”.

McCormick and Banks pointed out that Cadwalladr had failed to offer the businessman a right to reply ahead of the Ted Talk, nor included what they considered to be important context.

But Millar told the court: “Everything [she] said about him in the Ted Talk had been said many times before including in a number of mainstream media outlets.” He also said Banks had previously “stopped responding other than in a rather unpleasant and infantile” manner.

Banks argues his relationship with the Russians in the period before the EU referendum amounted only to a long boozy lunch and a brief meeting over a cup of tea with the Russian ambassador, with a further lunch following several months after.

Banks, who took the witness stand on Friday afternoon, also questioned why Cadwalladr had mentioned him in the Ted Talk at all considering it was primarily about Facebook’s role in the EU referendum.

He said in his witness statement: “… I do not understand why she chose to include me at all other than for personal animus.” He added that he saw it as a “calculated and deliberate attack upon me” considering Cadwalladr had scripted and rehearsed the talk.

McCormick told the court that Banks “accepts that as a public figure who took a leading role in the Brexit referendum he has to have a thick skin. He has been the subject of much ill-informed criticism and comment”.

But Banks said although he expected to get some media coverage and personal criticism and that he supports freedom of speech, “there are boundaries that must be observed”.

He claimed in his witness statement that the 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.”

He also said his sons had heard from their teachers and fellow school pupils that he was involved with the Russians, and that a man had thrown a drink at him in public while accusing him of being a liar and selling the country “down the river”.

However Cadwalladr’s case is that Banks’s evidence of serious harm caused by her words is “thin”. In regards to the tweet, Millar suggested to the court that Banks likely had no good reputation among Cadwalladr’s Twitter followers already.

The trial continues with Cadwalladr expected to take the stand in her defence early next week.

Picture: Reuters/Hannah McKay and Press Gazette

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