Arron Banks v Carole Cadwalladr

Under section 1(1) of the Defamation Act 2013, a statement is defamatory only if, and to the extent that, its publication causes or is likely to cause serious reputational harm. Where a public interest defence protects one phase of continuing publication but later falls away, the claimant must establish serious harm from the unprotected phase. Harm caused by lawful publication cannot establish liability for a different phase.

Serious harm may be inferred from the gravity of an allegation and the scale and circumstances of publication. General dislike, political opposition or a bad reputation in an unrelated sector cannot rebut that inference. A claimant’s indifference to the audience’s opinion is also irrelevant, although proof that adverse opinions can have no practical consequence may be relevant in an appropriate case.

The claimant sued for libel over an online TED Talk and a linked Tweet alleging that he had lied about secretly receiving foreign funding in breach of electoral law. The defendant abandoned truth but relied on the public interest defence under section 4(1) of the Defamation Act 2013.

In [2022] EWHC 1417 (QB), Steyn J held that the defence protected publication until 29 April 2020, when changed circumstances made continued unqualified publication unreasonable. She nevertheless dismissed both claims because serious harm had not been proved for the later publication period, and because the Tweet had not caused serious harm at all.

The appeal concerned whether serious harm had to be established separately for the unprotected phase, whether the judge had applied legally permissible considerations, and whether her errors required judgment for the claimant.

1. Appeal allowed in part. The appeal concerning the TED Talk was allowed and judgment was entered for the claimant for damages to be assessed in respect of publication in this jurisdiction between 29 April 2020 and judgment. The appeal concerning the Tweet was dismissed. Warby LJ gave the judgment, with which Singh LJ and Dame Victoria Sharp P agreed.
2. Section 1(1) of the Defamation Act 2013 preserves the common-law meaning of publication: each communication to a third party is a separate publication. A statement is defamatory only if, and to the extent that, its publication causes or is likely to cause serious reputational harm. The provision does not introduce a general single-publication rule. Sections 8 and 15 reinforce that construction.
3. Where a defence under section 4(1) protects an initial phase of continuing publication but later expires, the claimant must prove serious harm from the unprotected phase. Harm caused by protected or otherwise lawful publications must be disregarded. Relevant mass publications may nevertheless be assessed collectively rather than communication by communication.
4. The trial judge permissibly estimated the absolute scale of publication by comparing later publication with the initial audience. She erred, however, in relying on an unsupported inference that most recipients were in an “echo chamber” and already believed the specific allegation. General dislike, political disagreement or hostility in an unrelated sector does not show that a grave, specific allegation caused no reputational harm. Evidence of bad reputation must concern the relevant sector and comply with the rule excluding earlier publications of the same allegation.
5. A claimant’s feelings about the audience’s opinion are distinct from reputational harm. Indifference to what recipients think is legally irrelevant. The narrower possibility that their opinions could have no practical consequence was unsupported on the facts.
6. The TED Talk alleged serious dishonesty, unlawful foreign electoral funding and a secret relationship with a potentially hostile power. Its authoritative setting and at least 100,000 domestic views during the unprotected phase made serious harm an inevitable inference once the erroneous counterweights were removed.
7. The Tweet was different. It had been posted ten months before the defence expired and had moved far down the defendant’s timeline. There was no direct evidence or proper basis to infer actionable publication, or serious harm, during the unprotected phase.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 219, the court allowed the appeal concerning the TED Talk’s publication after 29 April 2020, entered judgment for the claimant with damages to be assessed, and dismissed the appeal concerning the Tweet.
2. High Court, King’s Bench Division: In [2022] EWHC 1417 (QB), Steyn J dismissed both claims. She held that the public interest defence protected publication until 29 April 2020 and that serious harm had not been established for the later TED Talk publications or for the Tweet.