ARRON BANKS v CAROLE CADWALLADR

Section 1 of the Defamation Act 2013 requires serious harm to be proved separately for each publication. Serious harm may be inferred from the meaning, gravity, scale and circumstances of publication, but publication figures alone do not determine the issue. Where a defendant establishes a public interest defence for an initial publication, harm attributable to that lawful publication must be disregarded if the defence later ends, and serious harm must be reassessed from the change of circumstances. Under section 4, the court considers the words complained of, rather than only the single defamatory meaning. A journalist may rely on a less damaging meaning unless the defamatory meaning was obvious or glaringly obvious. Political importance and the claimant’s public status inform the assessment but create no separate defence.

The claimant sued over a TED Talk and a tweet published by the defendant. The words were previously assigned the single meaning that he had repeatedly lied about a secret relationship with the Russian government concerning foreign funding of electoral campaigns.

The trial concerned serious harm under section 1 of the Defamation Act 2013 and the public interest defence under section 4. The court also considered whether later developments ended the defence for continuing online publication and whether serious harm had to be reassessed from that date.

1. Outcome. The claim was dismissed. Publication of the TED Talk on 15 April 2019 caused serious harm, but the defendant established the section 4 public interest defence for the period up to 29 April 2020. The claim concerning the tweet failed because serious harm was not proved. Continuing publication of the TED Talk after 29 April 2020 did not satisfy section 1.
2. Serious harm. The statutory threshold applied separately to each publication. It concerned actual or probable reputational harm and carried no presumption. The court could draw an inference from the gravity of the imputation, scale and circumstances of publication, the claimant’s position and the inherent probabilities. The TED Talk’s global reach, serious subject and credible platform justified an inference of serious harm. The tweet reached fewer people, largely within the defendant’s own audience, and did not justify that inference.
3. Effect of a later loss of defence. Where publication was initially protected by section 4 but circumstances later changed, serious harm had to be assessed from the date of change. Harm attributable to the protected publication was disregarded. The National Crime Agency statement alone did not end the defence, but the joint statement of 29 April 2020 did. It confirmed that there was no evidence of criminal offences or third-party funding. Continued publication without qualification was then no longer reasonably believed to be in the public interest.
4. Section 4. The defendant proved that the publications concerned matters of public interest, that she genuinely believed publication was in the public interest, and that the belief was reasonable. The assessment was fact-sensitive and concerned all the circumstances. Verification, the opportunity to comment, the defendant’s knowledge and conduct before publication, and appropriate allowance for editorial judgment were relevant, but no checklist or requirement of responsible journalism applied.
5. Meaning and editorial judgment. The statutory defence concerned the words complained of, not exclusively the single meaning determined at the meaning stage. The defendant genuinely intended to allege repeated lies about the relationship and to raise questions about the legitimacy of the claimant’s funding. She did not appreciate that the words conveyed the more serious allegation of unlawful acceptance of foreign funding. That meaning was not so obvious that her failure to verify it made her belief unreasonable.
6. Political speech. The TED Talk concerned political expression of high public importance. The wider limits of acceptable criticism applicable to important public figures were relevant to section 4, but did not create an independent legal issue or dispense with the statutory requirements.

The judgment records earlier procedural decisions in the same litigation. On 12 December 2019, Saini J determined the meaning of the words complained of in Banks v Cadwalladr [2019] EWHC 3451 (QB). The present judgment determined liability after trial.