Banks v Cadwalladr [2023] EWCA Civ 219
Case background
In 2022, prominent businessman, Mr Arron Banks, pursued a defamation claim against freelance journalist, Ms Carole Cadwalladr. The claim came about following a TED Talk that Ms Cadwalladr gave on 15 April 2019. In the TED Talk, Ms Cadwalladr stated:
“And I am not even going to get into the lie that Arron Banks has told about his covert relationship with the Russian Government.”
After Mr Banks issued his claim, Ms Cadwalladr posted a Tweet on 24 June 2019, stating:
“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.”
On 24 September 2019, the NCA released a statement confirming that there was no evidence to support the statements made by Ms Cadwalladr. On 29 April 2020, the Electoral Commission and Mr Banks published a joint statement referring to the NCA’s findings.
The TED Talk and the Tweet remained accessible online until the trial.
At trial, Justice Steyn found that:
- The TED Talk had caused serious harm to Mr Bank’s reputation and the TED Talk was defamatory for the purposes of Section 1 of the Defamation Act 2013 (DA 2013);
- Mr Banks had failed to prove that the publication of Ms Cadwalladr’s Tweet had caused serious harm to his reputation and therefore the Tweet was not defamatory for the purposes of Section 1 of the DA 2013;
- Ms Cadwalladr had established a public interest defence in relation to the publication of the TED Talk pursuant to Section 4 of the DA 2013;
- There was a significant change of circumstances once both the NCA’s statement and the joint statement had been published, such that the public interest defence ceased to apply; and
- Mr Banks had failed to prove that the publication of the TED Talk on 29 April 2020 caused or was likely to cause serious harm to his reputation. The TED Talk was therefore considered not defamatory for the purposes of Section 1 of the DA 2013.
Mr Banks appealed Justice Steyn’s decision to the Court of Appeal.
Court of Appeal proceedings
The Court of Appeal considered three issues.
The first issue was if the public interest defence was no longer applicable, would Mr Banks need to show that the continuing publication had caused serious harm? Justice Steyn took the view that although the initial publication of the TED Talk had caused serious harm, Mr Banks would also need to prove serious harm following the significant change of circumstances. The Court of Appeal concluded that Justice Steyn was right to consider whether Mr Banks had shown that the second phase of publication of the TED Talk had caused serious harm to his reputation. The Court of Appeal did find that the continuing publication of the TED Talk was “inherently” likely to cause serious harm.
The second issue was whether Justice Steyn’s approach to serious harm was wrong in law. Mr Banks argued in his appeal that:
- The Judge failed to focus on the actual scale of the publication;
- The Judge was wrong to conclude that harm was diminished because most of the people whom the publications were made to were in Ms Cadwalladr’s “echo chamber”; and
- The Judge was wrong to find that harm was reduced as most of the publishees were people whose opinion of Mr Banks was of “no consequence” to him.
The Court of Appeal did not agree with Mr Banks’ first point. They did agree with Mr Banks on the second and third points deciding that Justice Steyn did not have any evidence before her to support these findings.
The third issue for determination was whether the errors of principle identified above invalidated the Judge’s overall conclusions and her decision to dismiss the claims. The Court of Appeal:
- Upheld Justice Steyn’s decision to dismiss the claim in respect of the Tweet;
- Overturned Justice Steyn’s decision to dismiss the claim in relation to the TED Talk;
- In its place, made an order;
- That the claim in respect of the TED Talk would be dismissed as far as it relates to publication up to 29 April 2020; and
- That there be judgment for Mr Banks for damages to be assessed in respect of the publication of the TED Talk between 29 April 2020 and the date of judgment.
Comment
This case is a reminder to anyone wishing to rely on the public interest defence. It is an insight into how the Court will consider a defamation claim if publication continues after evidence is produced proving that the statement complained of is not true.
The Court of Appeal’s decision is a useful reminder that publishers cannot simply leave words complained of online. When the public interest defence falls away (as it did in this case), provided the statement complained of has or is likely to cause serious harm, a defendant may still be liable to pay damages. If the public interest defence falls away, it is sensible to consider removing the article.
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