14 June 2022

Who really ‘won’ the Banks/Cadwalladr defamation trial?

By Will Havelock

In a widely publicised High Court judgment, freelance journalist Carole Cadwalladr successfully defended herself against a claim of defamation from the Brexit-backing businessman Arron Banks. Banks had claimed that Cadwalladr had defamed him by suggesting he had used secret Russian money to fund election campaigns in breach of electoral law. In return, Cadwalladr accused Banks of trying to intimidate and silence her by bringing legal action.

Who really won this case, and why? And what lessons should we take from it?

Starting with the basis of the claim, Banks alleged at trial that two statements by Cadwalladr were defamatory. The first was in relation to a TED talk Cadwalladr gave in Canada in 2019 where, in a section about ‘the crimes that took place in the [EU] referendum’, she said:

‘And I am not even going to get into the lies that Arron Banks has told about his covert relationship with the Russian government.’

The second statement was a tweet where Cadwalladr linked to the TED talk and commented:

‘Oh Arron. This is too tragic. Nigel Farage’s secret funder Arron Banks has sent me a pre-action letter this morning: he’s suing me over this TED talk. If you haven’t watched it please do. I say he lied about his contact with the Russian govt. Because he did.’

In the trial, Banks claimed that both these statements have a ‘single meaning’, being that Cadwalladr was alleging that Banks had, on multiple occasions, lied about secretly accepting funding from the Russian government for electoral campaigns like the EU referendum, noting that such foreign funding is illegal under UK electoral law. This was the basis of Banks’ defamation claim. 

To succeed in a claim for defamation, the claimant (in this case Banks) must show that the complained of statement ‘would tend to have a substantially adverse effect on the way that right-thinking members of society generally would treat the claimant’. Banks and Cadwalladr agreed that the TED talk and tweet met this test.

The claimant must then also show that the statement has caused, or is likely to cause, ‘serious harm’ to their reputation. The judge ruled that the TED talk, being such a grave allegation and having been watched by approximately five million people, had caused serious harm to Banks’ reputation. For the tweet, however, the judge found that because Cadwalladr’s Twitter followers were such an ‘echo chamber’, Banks’ reputation amongst Cadwalladr’s followers was already so low that it was not possible to cause ‘serious harm’ to it by publishing the tweet. As such, the tweet was not defamatory at law. This means only the TED talk was considered further in the judgment.

However it is worth noting at this point that the court found that Banks’ claim was legitimate, and that the suit was not merely for the purpose of intimidating and silencing a journalist, as Cadwalladr had claimed.

Once a claimant has shown that the complained of statement meets the above two tests, the burden then falls on the defendant to show that they have a legal defence. The best-known defence in a defamation case is ‘truth’, i.e. the statement is substantially true and so cannot be defamatory. This is the defence The Sun newspaper successfully relied upon when sued by Johnny Depp for publishing allegations of him assaulting Amber Heard – those allegations were deemed substantially true, so Depp failed in his claim.

In this case, however, Cadwalladr did not try to advance a defence of truth. Indeed, she maintained that she did not believe the ‘single meaning’ that Banks had received Russian money to fund election campaigns was true. 

Instead, the defence Cadwalladr put forward at trial was that of publication in the public interest. This is effectively a journalist’s defence – it is meant to cover ‘responsible’ publication of statements which would otherwise be defamatory. To succeed in this defence, Cadwalladr had to show that (1) the statement in the TED talk was a matter of public interest; (2) that she believed that publishing the statement was in the public interest; and (3) that her (subjective) belief was (objectively) reasonable. This is the same defence which Rebekah Vardy sought to rely on in the ‘Wagatha Christie’ defamation trial.

On the first question, the parties agreed that the statement was a matter of public interest. So the first limb of the defence was shown. 

On the second question, this relates to Cadwalladr’s internal state of mind and the judge had ‘no doubt’ that Cadwalladr genuinely believed her statement was in the public interest.

The contentious issue falls on the third and final question – was it reasonable for Cadwalladr to believe that publishing the statement was in the public interest? This is an objective test and probes whether the defendant was justified in thinking that their publication was in the public interest. The judge made the point in particular that the threshold is not that of a ‘responsible journalist’, as Banks’ team had argued.

Based on the evidence detailed in the judgment, it is clear that Banks was not at all times forthcoming about the extent of his relationship with Russian government officials. He did publicly discuss, and even boast, about meeting Russian spies and the Russian ambassador in the UK. However, he had tweeted and told Cadwalladr that he had met the Russian ambassador twice, when in fact he had met him at least four times. Further, Banks did have discussions about possible ‘sweetheart’ deals in Russia, some facilitated by the Russian ambassador, which he had not disclosed. 

Separately, the source of funds for Banks’ donations to his Leave campaign group is uncertain. Banks’ offshore arrangements mean that his finances are ‘opaque’. Nonetheless, there is no evidence that Banks received any money – either by direct funding or through investment – from Russia. Indeed, Cadwalladr stated that she did not believe this was true.

However, the judge ruled that there were reasonable grounds for Cadwalladr as a journalist to investigate and query whether the source of Banks’ funding for UK election campaigns was illegally from foreign sources. As such, Cadwalladr satisfied the third limb of the public interest defence and so was not liable for defamation. She ‘won’ the case.

Cadwalladr claims, and the judge accepted that, she did not think that her comments in the TED talk could have been construed to mean that Banks had acted illegally by accepting Russian money to fund electoral campaigns. I am sure that Cadwalladr is able in her mind to separate out the facts and the unknowns. But it’s easy to see how right-minded people might have formed a very different impression of those facts from her statements.

So, the court may have found the TED talk was not defamatory as a matter of law, but was it really responsible journalism? I query whether raising unknowns – like whether Banks received Russian money – alongside facts always makes it clear to audiences what it is true and what is speculation. It is worth noting that when Cadwalladr suggested that Banks’ diamond mining businesses could be used for money laundering, she agreed that this was entirely speculation on her part. She had no factual basis for thinking that Banks had been money laundering using his diamond mines.

Journalists want to tell a good story, but reality seldom conforms to a tidy narrative. This is why all journalists choose to accentuate certain facts, to downplay others, and to raise speculative questions. Indeed, this article has used all of these techniques. It is the same game that politicians play (and which journalists scorn them for).

So is Cadwalladr a conspiracy theorist intent on bringing down those she disagrees with politically while carefully treading the line to avoid losing a defamation suit? Or is she a heroic investigative journalist bravely pursuing an unproven hunch against a criminal subverting our democracy? 

The answer to this question does not lie in the courts. It is up to us as consumers of the media to decide which journalists and stories we credit, and which we think are sensationalist fishing expeditions. Freedom of expression in the media is a pillar of a free society and an open democracy. We should respond in kind to journalists we disagree with – by making the case in the media why they are wrong. The media is the right forum for political debates, not lawfare in the courts.

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Will Havelock is a lawyer.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.