Introduction
The Court of Appeal recently handed down its judgment following the appeal of Arron Banks – a prominent Leave.EU funder – in his defamation claim against the journalist Carole Cadwalladr (EWCA Civ 219).
The judgment gives guidance on the application of the serious harm requirement, and the public interest defence (under sections 1(1) and 4 of the Defamation Act 2013), where there is a change of circumstances during a period of continuing publication.
The TED Talk and the Tweet
The claimant sued the defendant for libel following a TED Talk and a Tweet, in which the defendant suggested that the claimant had secretly broken the law on electoral funding by taking money from the Russian Government and by lying about the matter. The TED Talk had been given in April 2019 and was published on the TED.com website. The words complained of were:
“And I am not even going to get into the lies that Aaron Banks has told about his covert relationship with the Russian Government“.
The Tweet had been published shortly afterwards in June 2019 (following the defendant’s receipt of the claimant’s letter of claim). The words complained of were:
“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”.
The Tweet contained a hyperlink to the TED Talk. Both the TED Talk and the Tweet had remained accessible online from the time of the first publication until the time of the trial.
Meaning
At a preliminary trial on meaning, Saini J held that the words complained of in both the TED Talk and the Tweet meant that:
“On more than one occasion Mr Banks told untruths about a secret relationship he had with the Russian government in relation to acceptance of foreign funding of electoral campaigns in breach of the law on such funding".
The meaning was held to be defamatory at common law.
The High Court judgment
The claimant was unsuccessful at first instance.
By the time of the trial in January 2022, official investigations had found no evidence that the claimant had broken the law in the way suggested by the defendant. The Electoral Commission publicly confirmed this, in a joint statement with the claimant, on 29 April 2020. The defendant had abandoned a defence of truth and had apologised, but she had relied on the statutory defence of publication on matters of public interest at the trial.
In her judgment, Steyn J made a distinction between the period up to the Electoral Commission’s joint statement (Phase One) and after it (Phase Two). She held that a public interest defence was established for Phase One, but not in Phase Two as it was by then no longer reasonable for the defendant to believe that it was in the public interest to assert that there were grounds to investigate whether the source of the claimant’s donations was foreign funding, accepted in breach of the law.
Steyn J dismissed the claim in relation to both the TED Talk and the Tweet. She held that:
- TED Talk:
- Phase 1: the initial publication of the TED Talk had caused serious harm to the claimant’s reputation but was protected by the public interest defence; and
- Phase 2: publication of the TED Talk was not protected by the public interest defence in this phase, but it had not caused serious harm to the claimant's reputation and therefore was not actionable; and
- Tweet: the publication of the Tweet would have been protected by the public interest defence, to the same extent as the TED Talk, but it was not actionable, as it had not caused any serious harm to the claimant’s reputation.
The Appeal
The claimant appealed on the grounds that Steyn J was wrong to hold that:
- the issue of whether or not a statement has caused or is likely to cause serious harm to the defendant’s reputation needs to be determined again from the date on which the defendant’s belief that it is in the public interest to publish the statement ceases to be reasonable (and hence the public interest defence falls away) (Ground 1);
- the claimant had not proved that the Tweet caused (or was likely to cause) serious harm to his reputation (Ground 2); and
- the publication of the TED Talk in Phase Two had not caused and was not likely to cause serious harm to the claimant’s reputation (Ground 3).
The claimant was partially successful, as the Court of Appeal held that Steyn J had been wrong to find that the continuing publication of the Ted Talk in Phase Two had not caused harm to his reputation (Ground 3). However, the Court of Appeal held that Steyn J had not been wrong to dismiss the claim in respect of the Tweet (Ground 2) and that Steyn J had been correct in principle to reconsider the issue of serious harm in relation to Phase Two, after the defendant’s public interest defence fell away (Ground 1). Warby LJ gave the lead judgment.
In Ground 1 the claimant had argued that, where the defendant has a public interest defence which falls away, the fact that the publication caused serious harm to the claimant’s reputation in Phase One is enough to justify a judgment for the claimant in respect of Phase Two. However, the Court of Appeal held that the effect of section 1(1) of the 2013 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”) is that a statement is only to be regarded as defamatory if, and to the extent that, its publication causes serious harm to reputation or is likely to do so; publication that does not cause serious harm, or is not likely to do so, is not actionable. The Court of Appeal therefore agreed that Steyn J was right to consider whether the claimant had shown that Phase Two of the publication of the TED Talk had caused serious harm to his reputation (or was likely to do so).
The Court of Appeal then considered Ground 3, namely whether Steyn J’s approach to the question of whether serious harm was established in Phase Two, was wrong in law. The Court of Appeal upheld two out of the claimant’s three arguments on this point. It held that her conclusion that harm was diminished because most of those to whom the relevant publications were made were within the defendant’s “echo chamber“ was legally wrong or untenable on the evidence, and that her finding that harm was reduced because many of the publishees were people whose opinion of the claimant was of “no consequence“ to him, was also wrong in law.
The Court of Appeal then considered whether these errors of principle invalidated the judge’s overall conclusions and her decision to dismiss both claims. The claimant was partially successful in this element of his appeal as the Court of Appeal held that the serious harm requirement was satisfied in Phase Two of the TED Talk. It held that the TED Talk conveyed a serious allegation which was inherently likely to cause serious reputational harm to the defendant, that there was extensive publication of the TED Talk in Phase Two, and that there was nothing to act as a counterweight to the natural inference that the publication had caused serious harm to the claimant’s reputation of the claimant (although the precise measure of that harm remained be assessed).
However, the Court of Appeal took a different view in respect of the Tweet in Phase Two when considering Ground 2. It held that its publication peaked at or near the time that it was first posted, following which it fell further and further down the defendants timeline. The Tweet had been protected by the public interest defence during Phase One and the Court of Appeal held that there was no basis for any inference that any publication of the Tweet in Phase Two had caused any serious reputational harm to the claimant. It therefore dismissed that aspect of the claimant’s appeal.
Commentary
The Court of Appeal noted that, although the Defamation Act 2013 came into force on 1 January 2014, it was the first time that the court had been called on to consider Ground 1. It accepted that it might seem odd that the same statement, published over a period of time by the same defendant, may be defamatory for only some of that time, but held that this was an inevitable consequence of the requirement enacted by section 1(1) of the Defamation Act 2013, which makes it an essential ingredient of a statement being defamatory that “its publication has caused serious harm” (or is likely to do so).
The judgment provides helpful clarity on the interplay between the serious harm requirement and the public interest defence, and acts as a reminder that, where there is an ongoing publication and new facts come to light, publishers should assess whether that publication continues to be in the public interest. It also underlines the importance of considering whether the defendant continues to be responsible for the publication throughout the period of continuing publication. In this case, the defendant had admitted responsibility for the words complained of throughout both Phases One and Two (even though it was common ground that the defendant was not able to control what the TED organisation did).
Although this issue is most likely to arise in a public interest defence, it may also be relevant to the defence of honest opinion, if a claimant can show that at some point during the continuing publication, the defendant ceased to hold the opinion.
Finally, the judgment also provides clarity on the assessment of serious harm as, although the defendant had argued that the claimant didn’t care what the defendant’s audience thought of him, the Court of Appeal held that how a claimant feels about publication is irrelevant to the serious harm test.
