The multimillionaire Brexit backer Arron Banks has lost a significant part of his appeal against the decision in his unsuccessful libel action against the Observer and Guardian journalist Carole Cadwalladr.
Banks, who funded the pro-Brexit Leave.EU campaign group, succeeded in only one of three challenges brought to the court of appeal.
Last year, he lost a high court case brought personally against Cadwalladr in relation to two instances from 2019 – one in a Ted Talk and the other in a tweet – in which she said the businessman was lying about his relationship with the Russian state.
In June, in a significant decision for public interest journalism, Mrs Justice Steyn found that although Cadwalladr’s words were, as interpreted by the judge, untrue, she had a public interest defence under section 4 of the Defamation Act 2013, which protects journalists against inaccuracies they reasonably believe to be true when investigating matters of great import.
Steyn also found that serious harm had not been established in relation to the tweet at any point. With respect to the Ted Talk, the judge found that the public interest defence fell away after the Electoral Commission found no evidence of law-breaking by Banks with respect to donations. But by that time – 29 April 2020 – Steyn was not convinced that the continuing publication of the Ted Talk caused or was likely to cause serious harm to his reputation.
Banks did not challenge the public interest defence, but argued that the judge was wrong to hold that the issue of whether or not the Ted Talk caused serious harm to his reputation needed to be determined afresh after that 29 April 2020 date. The court of appeal rejected that argument, but upheld his claim that he had in fact suffered serious harm after the Electoral Commission’s findings were published.
In a judgment, published on Tuesday, three appeal court judges unanimously found that Steyn’s finding that Banks did not suffer serious harm because the Ted Talk and tweet were published to an “echo chamber” was not supported by the evidence. The judgment, written by Lord Justice Warby, also said on serious harm that there was insufficient basis for Steyn’s finding that the opinion of the publishees were of “no consequence” to Banks because he did not care what they thought.
Warby wrote: “My conclusion that the trial judge erred in the ways I have identified is not enough in itself to justify the reversal of her decision … Nonetheless, so far as the Ted Talk is concerned, I have concluded that the judge’s errors do fatally undermine her conclusion. In my judgment, if those errors are put to one side it was an inevitable inference from the evidence before the judge that publication of the Ted Talk after 29 April 2020 caused serious harm to the reputation of the claimant.”
Sitting with Lord Justice Singh and Dame Victoria Sharp, Warby said that damages should therefore be assessed for Banks in respect of publication of the Ted Talk between 29 April 2020 and the date of judgment. Referring to Banks’ wish to have the offending content removed from the Ted Talk, Warby said “it is common ground that she (Cadwalladr) is not able to control what the TED organisation does. There is an issue about the extent to which she should seek to persuade it to edit the Ted Talk or cease publication of the talk in its current form.
Warby agreed with Steyn that that publication of the tweet after 29 April 2020 had not caused serious reputational harm because its visibility would have peaked well before that time.
A GNM spokesperson said: “Carole Cadwalladr’s award-winning journalism has prompted worldwide debate on social media, privacy and political targeting. Her successful defence of her reporting last year was a victory for investigative journalism in the public interest.
“Arron Banks appealed last year’s high court ruling on three discrete points. The appeal court judges found in Ms Cadwalladr’s favour on two points, but ruled in favour of Mr Banks on one matter, the continued publication of the Ted Talk after 29 April 2020. However, the judges acknowledged that Ms Cadwalladr is not in control of what the TED organisation publishes, and we note that Mr Banks chose not to sue Ted Talks.
“We welcome the dismissal of the other two grounds of appeal which are important points of principle. Ms Cadwalladr’s reporting into this matter of vital public interest has been vindicated.”
