Court of Appeal gives guidance on the serious harm requirement in Banks v Cadwalladr libel appeal

Background summary

On 28 February 2023, the Court of Appeal handed down its judgment ([2023] EWCA Civ 219) in Arron Banks’s appeal in respect of his libel claim - which was unsuccessful at first instance - against investigative journalist Carole Cadwalladr. Banks was successful on one of his three grounds of appeal against Cadwalladr.

The decision is significant in its interpretation of statutory provisions of the Defamation Act 2013, specifically sections 1 (serious harm requirement) and 4 (public interest defence) and for the judicial approach to publication on social media sites.

High Court judgment

Banks’s claim related to allegations that he lied about his “secret relationship” with the Russian Government, which were made by Cadwalladr in 2019 in a TED Talk and subsequently in a tweet.

The factual background to the case was somewhat complex and turned on certain discrete phases as matters developed.

Judgment was given in favour of Cadwalladr by Steyn J.

Regarding the TED Talk, Steyn J found that Cadwalladr successfully made out a public interest defence (under section 4 of the Act) in respect of its original publication (“Phase One”), up until the date of publication of a joint statement by Banks and the Electoral Commission in respect of the allegations. This is a statutory reformulation of the so-called “Reynolds” common law defence which allows a defendant a defence to a defamation claim where:

• the statement complained of was, or formed part of, a statement on a matter of public interest; and
• the defendant reasonably believed that publishing the statement complained of was in the public interest.

After the publication of the joint statement, it was apparent that Cadwalladr had no evidence in respect of the allegations and therefore could not demonstrate that her belief that publication was in the public interest was reasonable (“Phase Two”).

In respect of Phase One publication of the TED Talk, in the event Cadwalladr’s public interest defence had not been made out, it was held that it could be inferred that Banks’ reputation had suffered serious harm (under section 1 . of the Act).

However, in respect of the publication of the TED Talk in Phase Two, Banks failed to show that serious harm to his reputation had been caused.

Regarding the tweet, it was protected by the public interest defence in the same way as the TED Talk in Phase One, but in any event, Banks was not found to have met the requirements for the serious harm test.

Please refer to our previous Law Now for more details on the High Court’s judgment.

Appeal

Banks appealed on three grounds relating to the issue of serious harm under section 1 . of the Act, which provides that:

“a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

Serious harm and the public interest defence

The first issue concerned the meaning of the serious harm requirement and its relationship to the application of the public interest defence. The question to be answered was whether, where a defendant’s public interest defence falls away, the fact that the protected phase of publication (i.e., Phase One) caused serious harm to the claimant’s reputation is enough, as a matter of law, to justify a judgment for the claimant in respect of Phase Two. Banks attempted to argue that it was, and as his reputation had suffered serious harm in Phase One, the serious harm requirement was met in respect of Phase Two once the public interest defence no longer protected publication.

Warby LJ agreed with Steyn J’s decision that this was not correct and that, as a matter of principle, the question of serious harm must be reconsidered for Phase Two.

Scale of publication and identity of publishes

The second issue related to whether the question of serious harm had been decided wrongly, in law, on the basis that the judge (1) failed to focus on the scale of publication, and (2) wrongly concluded that harm was diminished on the basis that the allegations had been made in the defendant’s “echo chamber” and (3) were made to individuals whose opinion of the claimant were of “no consequence” to him.

Warby LJ dismissed (1), but concluded that Steyn J had erred in respect of (2) and (3). He held that the judge’s findings were unsustainable – whether or not the claimant cared about what the publishees thought was legally irrelevant to the issue of serious harm, and there was no evidence to support a conclusion that others’ adverse opinion of the claimant were of “no consequence” to him, in the sense that they could have no impact on his life.

The effect of the errors

The third issue was whether these errors of principle should result in successful appeals in respect of the TED Talk and the tweet.

Warby LJ held that Steyn J was correct to dismiss the claim in respect of the tweet. Although it attracted the same serious imputation as the allegations in the TED Talk, the tweet’s publication peaked at or near the time it was first posted and subsequently fell down the defendant’s timeline, therefore reaching fewer people. At the time it was posted, the defendant was protected by the public interest defence, and its continued publication in Phase Two did not satisfy the requirements for serious harm.

However, the claimant’s submissions were accepted in respect of the Phase Two publication of the TED Talk, on the basis that it conveyed a serious allegation which was inherently likely to cause serious reputational harm and its extensive publication continued into Phase Two.

The appeal was therefore allowed against the dismissal of Banks’ claim in respect of the TED Talk in Phase Two, and Cadwalladr is liable to pay damages (to be assessed) in respect of this publication.

Comment

The Court of Appeal has provided helpful clarity as regards the test for serious harm and the interplay between section 1 and section 4 . of the Act in circumstances where there is continuing publication of allegations. This is a more prevalent issue now, in light of the increase in libel claims being brought in respect of allegations made on online and social media, as opposed to traditional print media. Warby LJ commented that this was the first time this issue had fallen to be decided by the Court of Appeal since the introduction of the Act.

Although Banks was successful in establishing that serious harm was caused to his reputation as a result of the continuing publication of the allegations in the TED Talk in Phase Two, Warby LJ rejected his submission that, for the purposes of section 1 . of the Act, publication must be considered as a whole, and not by reference to each individual publication on each individual date to each individual publishee. A separate assessment had to be made in respect of serious harm in Phase Two.

Warby LJ’s judgment also confirms the principle that a public interest defence, once established, does not necessarily endure for ever. In circumstances where there is continuing publication of allegations, a defendant must be able to subsequently make out the elements of the public interest defence, i.e., it is not enough that its original publication was protected. In this case, Cadwalladr had accepted that she could not demonstrate her continued and reasonable belief that it was in the public interest to publish the allegations in Phase Two.

This will serve as an important reminder for journalists and editors that they will be expected to amend or remove allegations retrospectively if additional conflicting facts subsequently come to light. Had Cadwalladr taken steps to remove the TED Talk in Phase Two, it is unlikely that Banks would have been able to establish that Cadwalladr has caused serious harm to his reputation. However, the judgment acknowledges that Cadwalladr is not able to control what the TED organisation does, and there is an issue about the extent to which Cadwalladr should have sought to persuade it to edit or remove the TED Talk.

The judgment is interesting in the context of ongoing debate and public scrutiny regarding “SLAPPs” (strategic lawsuits against public participation). The first instance judgment specifically recorded that the case was a legitimate attempt on the part of the Claimant to seek vindication and therefore did not amount to a SLAPP despite the claim ultimately being dismissed. Despite these comments and the fact that the Court of Appeal has now upheld part of the claim, the anti-SLAPP coalition has reiterated its support of Cadwalladr following the judgment and says it continues to categorise this case as a SLAPP.

The Court of Appeal judgment does not address the issue of costs. In the order that will follow this judgment, the Court of Appeal has the power (under Civil Procedure Rules 52.20) to deal with the costs before the lower court, as well as the costs of the appeal. The Court of Appeal allowing part of the claim may therefore have significant financial consequences for the parties.