Regular readers of the Law Column may recall the case of Banks v Cadwalladr from last summer, in which the High Court provided an exciting development in the application of the public interest defence as set out in section 4 of the Defamation Act 2013.
Following an appeal by Mr. Banks, the Court of Appeal has now ruled that his reputation did suffer serious harm as a result of the continuing publication of Ms. Cadwalladr’s TED Talk.
So where, you might ask, does this leave the case once hailed as a resounding victory for public interest journalism?
The dispute began back 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 made allegations that Mr. Banks, a high-profile Brexiteer and political figure, had a secret ongoing relationship with the Russian Government relating to foreign funding.
At first instance, Mrs. Justice Steyn held that though Ms. Cadwalladr succeeded on her public interest defence initially, it fell away after the NCA and Electoral Commission determined that there was no evidence to support the allegations made. In spite of this, the TED Talk continued to be available to view without amendment – the so-called “second phase” of publication.
However, Steyn J. also determined that the question of whether serious harm had been caused, or was likely to occur, had to be re-assessed in the context of this new second phase. She held that although the public interest defence was no longer available once the NCA and Electoral Commission reached their conclusions, Mr. Banks had no claim in libel because he was not able to establish serious harm to his reputation in the second phase. So despite Ms. Cadwalladr’s defence falling away, she had no liability to Mr. Banks for libel.
Subsequently, Mr. Banks was given permission to appeal the judge’s decision, and a hearing took place in February before the Court of Appeal. The three appeal Judges had to address a number of issues about the application and interpretation of the serious harm test, contained in s.1(1) of the Defamation Act 2013 –
1. When is the appropriate time to assess serious harm in a case such as this, where a defence of publication in the public interest has fallen away but there is continuing publication?
2. Is it relevant to consider the opinions of the individuals to whom publication was made as far as they relate to the claimant? Does it matter if publication was made in the defendant’s “echo chamber”
3. Does the fact that there are alleged errors of law in the reasoning of the trial judge as set out in points 1 and 2 above undermine the entire conclusion reached?
In a unanimous decision, the Court of Appeal agreed that Steyn J had been correct to re-assess the issue of serious harm in the period after Ms. Cadwalladr’s public interest defence had fallen away. But, they held, she had been wrong to conclude that the continuing publication of the TED talk had not caused serious harm to Mr. Banks’ reputation.
Specifically, the Court of Appeal held that Steyn J’s assessment of the serious harm suffered by the claimant was wrong in law. The scale of publication – even just in phase two of the proceedings – was extensive, estimated at trial to be somewhere in the region of 100,000 views. This, together with the seriousness of the allegations levelled against Mr. Banks, meant that serious harm was an “inevitable inference”.
Thus, Mr. Banks had, in fact, satisfied the serious harm test, so he had a claim in libel after all. And Ms. Cadwalladr had no defence once the NCA and Electoral Commission decided as they did.
In his ruling, Lord Justice Warby stated that “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 the Claimant.”
Both parties responded to the judgment by claiming victory, clams which, to some extent, are both true. The dispute is not yet over, because a number of consequential matters have to be determined, principally the level of damages to be awarded to Mr. Banks, whether he is entitled to an injunction, and whether the Court can (or should) make an order against the TED organisation over which the parties were agreed that Ms. Cadwalladr has no control. And that’s before the parties and the Court have to deal with the very difficult issue of costs.
If the parties do not settle their differences, we will not have heard the last of this case; there’s a good deal more litigation in the offing.