The High Court has recently decided that the public interest defence had been established in a defamation claim brought by prominent businessman, Mr Arron Banks, against freelance journalist, Ms Carole Cadwalladr.
The Claimant (Mr Banks) in this high-profile defamation case is a prominent figure within the political sphere and was famously the largest donor to the Brexit campaign. Mr Banks is also a businessman who has an extensive portfolio of business and investment interests. The Defendant (Ms Carole Cadwalladr) is a freelance journalist who has written predominantly for newspapers, such as The Observer and The Guardian, over the past 16 years.
On 15 April 2019, Ms Cadwalladr gave a TED talk at the TED2019 Conference in Vancouver, Canada, entitled “Facebook’s role in Brexit- and the threat to democracy”. At the TED talk, which was subsequently published on the TED.com website, Ms Cadwalladr stated:
“And I am not even going to get into the lies that Arron Banks has told about his Covert relationship with the Russian Government.”
Following the TED talk and after Mr Banks filed a defamation claim against Ms Cadwalladr on 24 June 2019, she tweeted:
“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 preliminary trial on 12 December 2019, there was a discussion on the meaning of the words, Saini J determined:
“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 law on such funding.”
Justice Steyn, in this current judgment, referred to this as ‘the single meaning’, which was not contested by Ms Cadwalladr who in a letter of apology to Mr Banks on 25 March 2021 stated:
“It was not my intention to make any such allegation and I accept that such an allegation would be untrue.”
The key issues in the trial have surrounded whether both statements by Ms Cadwalladr had caused or were likely to cause serious harm to Mr Banks’ reputation within the meaning of Section 1 of the Defamation Act 2013 (2013 Act). If this had been established, the other consideration would have been whether Ms Cadwalladr had established a public interest defence to the claim pursuant to Section 4 of the 2013 Act.
Under common law, for a publication to be defamatory it must also satisfy the condition set out in Section 1 of the 2013 Act. Section 1 provides:
“(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”
Mr Banks’ evidence of serious harm is based on the gravity of imputation and the scale of publication. He also relied on evidence in relation to the reaction to the TED Talk and tweets of those who had made written comments.
Public interest defence
In relation to the public interest defence, Justice Steyn stated there were three questions that needed to be addressed in this case:
- Was the statement complained of on a matter of public interest, or did it form part of such a statement?
- If so, did the Defendant believe that publishing the statement complained of was in the public interest?
- If so, was that belief reasonable?
High Court’s decision
On 13 June 2022, Justice Steyn found that the TED talk had caused serious harm to Mr Bank’s reputation, but concluded that Ms Cadwalladr had succeeded in her public interest defence and that:
“…publishing the TED talk was in the public interest… was reasonable.”
In her judgement, Justice Steyn relied on the extensive research that Ms Cadwalladr had conducted prior to the TED talk. Ms Cadwalladr explained in her evidence during the hearing that the initial intention behind the remark was to indicate that Mr Banks had been untruthful regarding his meeting with the Russian Embassy.
In relation to the tweet, Mr Banks did not establish that serious harm had been met, which meant there was no need for Ms Cadwalladr to establish the public interest defence.
This case has strengthened the support for the use of the public interest defence in the law of defamation and the protection it has offered to journalists in the quest for “freedom of speech.”
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Monica Guram is a Trainee Solicitor at Nelsons.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Monica or a member of our Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.Contact us