Banks v. Cadwalladr is welcome victory for public interest journalism


Amongst the recent glut of high-profile libel cases comes a decision celebrated by both publishers and lawyers alike.

The case of Arron Banks v. Carole Cadwalladr, now dubbed a “victory for public interest journalism,” began in April 2019 when Ms. Cadwalladr gave a TED talk entitled “Facebook’s role in Brexit – and the threat to democracy”.

In the talk, Ms. Cadwalladr said that Mr Banks, a high-profile political figure and Brexiteer, had a secret ongoing relationship with the Russian Government.

Following the talk, Mr Banks instructed lawyers to send a pre-action letter to Ms. Cadwalladr which prompted her to post a Tweet, restating the allegations she had made about Mr Banks’ Russian connections.

Following the publication of the Tweet, lawyers acting for Mr Banks issued proceedings against Ms. Cadwalladr.

At a trial of preliminary issue in December 2019, Mr Justice Saini determined the single meaning of Cadwalladr’s words in both the TED talk and the Tweet to be that “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”.

Notably though, in the initial stages of the litigation Ms. Cadwalladr had pleaded a defence of truth in relation to the statements published, this was amended following the determination of meaning to a defence based on S.4 of the Defamation Act 2013 - publication in the public interest.

In a letter of apology to Mr Banks, Ms. Cadwalladr acknowledged that the meaning determined by Saini J was not true and further stated that it was “not my intention to make any such allegation”.

A full trial to determine both whether Mr. Banks had sustained serious harm to his reputation as a result of the publication, and whether Ms. Cadwalladr had successfully proven her defence of publication in the public interest, took place in January 2022, with judgment being handed down last week.

In her decision, Steyn J found that Mr. Banks had established that he had suffered serious harm as a result of the publication of the TED talk, though not the Tweet. The onus therefore fell upon Ms. Cadwalladr to prove her public interest defence.

In an interesting ruling, Steyn J held that Ms. Cadwalladr had successfully made out her defence but that it was only applicable in relation to the period stemming from the date of publication up until the point at which the Electoral Commission released a statement accepting the findings of the National Crime Agency that there was no evidence to suggest that Mr Banks had accepted foreign funding from any source.

Steyn J. held that from the point at which this statement was released it became clear that Ms. Cadwalladr could have no evidence to support her allegations set out in the single meaning. In turn, this change in circumstance meant that from this point, Ms. Cadwalladr could no longer successfully argue a defence of publication in the public interest.

Despite this, Mr Banks remained unsuccessful in his claim due to Steyn J’s conclusion that this period of continued publication had not caused serious harm to his reputation.

Interestingly, although Mrs. Justice Steyn concluded that Mr Banks’ claim had failed, she declined to accept the assertions of Ms. Cadwalladr that the claim had been a so-called “SLAPP suit”, instead finding Mr Banks’ claim to be a legitimate attempt to seek vindication.

Overall, the decision is a welcome and supportive ruling, but it is also important to note that proving established grounds for the defence of publication in the public interest now appears only to be the first hurdle.

It seems that in order to preserve such a defence to a claim of libel, it is also necessary to monitor the situation for updates which may require alterations to a publication to avoid potential legal exposure

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