Arron Banks, a businessman and one of the leaders of and the largest donor to the Leave.EU campaign, issued proceedings for defamation against award-winning investigative journalist Carole Cadwalladr in relation to a TED talk entitled “Facebook’s role in Brexit – and the threat to democracy”, which Ms Cadwalladr gave on 15 April 2019. In the TED talk, Ms Cadwalladr suggested that Mr Banks had secretly broken the law on electoral funding by taking money from a foreign power and lying about it. The words that Mr Banks complained about were: “And I am not even going to get into the lies that Arron Banks has told about his covert relationship with the Russian Government”.

Mr Banks also complained about a tweet posted by Ms Cadwalladr, which provided a hyperlink to the TED talk accompanied by the words “I say he lied about his contact with the Russian govt. Because he did”.

Both the TED talk and the tweet were published online to a substantial audience in the UK. By the time of trial, official investigations had found no evidence that there had been any breach of the law by Mr Banks as Ms Cadwallader alleged. Ms Cadwalladr had therefore abandoned her defence of truth and apologised, but she relied on the statutory defence of publication on matters of public interest.

The trial judge dismissed both claims, holding that although the initial publication of the TED talk had caused serious harm to Mr Banks’s reputation it was protected by the public interest defence. The judge also found that later publication of the TED talk was not so protected but had not caused serious harm and was therefore not actionable. As for the tweet, the judge said that its publication would have been protected by the public interest defence to the same extent as the TED talk but none of it was actionable in any event, as it had not caused any serious harm to Mr Banks’s reputation.

Mr Banks appealed, raising three issues about the interpretation and application of s 1(1) of the Defamation Act 2013 (the serious harm requirement).

The first issue concerned the meaning of s 1(1) and its relationship with s 4(1) of the 2013 Act (the public interest defence). The question was whether, where the defendant has a public interest defence which falls away, the fact that the first, lawful phase of publication caused serious harm to the claimant’s reputation is enough as a matter of law to justify judgment for the claimant in respect of the second phase.

The trial judge had found that it is not, holding that in such a situation it is necessary for the claimant to prove that that publication in the second phase has caused serious harm or is likely to do so. Mr Banks challenged that conclusion.

In Lord Justice Warby’s view the trial judge was correct. Warby LJ said that the effect of s 1(1) of the 2013 Act is that a statement is only to be regarded as defamatory if and to the extent that its publication causes serious harm to reputation or is likely to do so. Publication that does not cause serious harm and is not likely to do so is therefore not actionable. The judge had therefore been right to consider whether Mr Banks had shown that the second phase of publication of the TED talk had caused serious harm to Mr Banks’s reputation or was likely to do so.

The second issue was whether the judge’s approach to the question of whether serious harm was established was wrong in law. Mr Banks argued that:

• the judge had failed to focus on the actual scale of publication, looking instead at how it compared with the scale of other publications;
• the judge’s conclusion that harm was diminished because most of those to whom the relevant publications were made were in Ms Cadwalladr’s “echo chamber” was legally wrong or untenable on the evidence; and
• the judge’s finding that harm was reduced because many of the publishees were people whose opinion of Mr Banks was of “no consequence” to him was also wrong in law.

Warby LJ was not persuaded that the judge had made the first of the alleged mistakes. However, he concluded that she had made the second and third mistakes. If what the judge meant by the term “echo chamber” was that most of the publishees were people who disliked or had a generally low opinion of Mr Banks, that was irrelevant to the question she had had to decide. If, as Warby LJ believed, what she meant was that in the minds of most publishees Mr Banks already had a bad reputation for the specific misconduct of taking foreign money in breach of electoral law and lying about it, the evidence did not allow such a finding. The judge’s finding that harm to Mr Banks’s reputation in the eyes of these publishees was of “no consequence” to him was also unsustainable. If she meant that Mr Banks did not care what these publishees thought, that was legally irrelevant to the issue of whether serious reputational harm had been established. There was no evidence to support a conclusion that others’ adverse opinions of Mr Banks were of “no consequence” to him in the sense that they could have no practical impact upon his life.

The third main issue was whether these errors of principle invalidated the judge’s overall conclusions and her decision to dismiss both claims. Mr Banks argued that the only legitimate conclusion was that the serious harm requirement had been satisfied and that there should therefore be judgment for him in relation to both the TED talk and the tweet.

Warby LJ accepted these submissions so far as the TED talk was concerned. The TED talk conveyed a serious allegation, involving dishonesty and breach of electoral law, which was inherently likely to cause serious reputational harm. On any view there was extensive, later publication of the TED talk in this jurisdiction. The judge had rejected Ms Cadwalladr’s attempt to show that Mr Banks had a pre-existing bad reputation. The judge’s own reasoning about an “echo chamber” and the lack of any “consequence” was unsound. There was nothing else to act as a counterweight to the natural inference that publication in phase two had caused serious harm to the reputation of Mr Banks. The precise measure of that harm remained to be assessed but it was not possible to conclude that it was not “serious”. To that extent, Warby LJ, with whom the other Justices agreed, allowed the appeal against the dismissal of the claim in respect of the TED talk. In its place, he substituted an order that the claim be dismissed so far as it related to the initial publication (up to 29 April 2020) but that there be judgment for Mr Banks for damages to be assessed in respect of its later publication in phase two (between 29 April 2020 and the date of judgment).

However, Warby LJ said, the position in respect of the tweet was different. Although it conveyed the same serious imputation as the TED talk the judge had found that its publication peaked at or near the time it was first posted, after which it fell further and further down Ms Cadwalladr’s timeline, as one would expect. For ten months any publication had been protected by the public interest defence. In Warby LJ’s judgment, whatever might be said about harm caused by the initial phase of publication, there was no basis for any inference that there was any publication of the tweet in phase two that caused any serious reputational harm. To that extent, the judge had clearly been right. He therefore upheld her decision in respect of the tweet and dismissed that aspect of the appeal. The other Justices agreed. (Aaron Banks v Carole Cadwalladr [2023] EWCA Civ 219 (28 February 2023) — to read the judgment in full, click here).