Arron Banks, TED and the public interest (Banks v Cadwalladr)

This analysis was first published on Lexis®PSL on 21 June 2022.

Banks v Carole Cadwalladr [2022] EWHC 1417 (QB)

What are the practical implications of this case?

The concept of the strategic lawsuit against public participation (SLAPP) has been in the spotlight in recent times. In short, a SLAPP is an attempt to close down legitimate activity by, in essence, misusing the legal process to silence critics.

In this claim, Ms Cadwalladr had labelled the claim as a SLAPP suit stating that Mr Banks had brought the claim to silence and intimidate her. However, the court decided that Mr Banks’ ‘attempt to seek vindication through these proceedings’ was, in fact, legitimate. The judge stated that although Mr Banks’s claim had failed, he was entitled to bring the claim for reasons set out at paragraph [416] of the judgment. Paragraph [416] contains a summary of the court’s conclusions.

A legitimate claim cannot be correctly categorised as a SLAPP. After all, it seems fair that a claimant with a ‘legitimate claim’ should be able to seek recourse before the courts. The judge stated that Ms Cadwalladr has no defence of truth and the defence of public interest had succeeded only in part and therefore it would not be fair to describe the claim as a SLAPP suit. ‘In circumstances where Ms Cadwalladr has no defence of truth, and her defence of public interest has succeeded only in part, it is neither fair nor apt to describe this as a SLAPP suit.’

On this basis, the difficulty with a SLAPP is that a defendant will never really know if they are defending a SLAPP until judgment is handed down.

Discussion of public interest defence

The court considered the public interest defence pursuant to DA 2013, s 4. The court stated that there were three questions to be addressed:

• was the statement complained of on a matter of public interest, or did it form part of such a statement?
• if so, did the defendant believe that publishing the statement complained of was in the public interest?
• if so, was that belief reasonable?

This claim underlines the importance for anyone intending to rely on the public interest defence to consider the three questions above prior to publication.

The first question is objective and not the subjective judgment of a journalist or editor; the second question is subjective and dependent on the state of mind at the time of publication; and the third is an objective assessment.

In this case, regarding the third question, the court undertook a detailed review of articles that Ms Cadwalladr had written prior to the TED Talk and considered articles she had written for more than a decade on the impact of technology on society.

What was the background?

In this defamation case, the claimant is the prominent businessman and Vote Leave campaigner Arron Banks. The defendant is the journalist Carole Cadwalladr.

On 15 April 2019, Ms Cadwalladr, presented a TED Talk at the TED 2019 Conference in Canada. The TED Talk, which was entitled ‘Facebook’s role in Brexit–and the threat to democracy’, was published on the TED.com website. The words complained of were:

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

On 24 June 2019, Ms Cadwalladr published a Tweet containing the words complained of and a hyperlink to the TED Talk. 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.’

On 29 April 2020, a joint statement was published by Mr Banks and the NCA.

Throughout the proceedings, Ms Cadwalladr had suggested that the claim was a so-called SLAPP suit.

What did the court decide?

In considering the public interest defence, the court adopted the approach set out by Lord Wilson in Serafin v Malkiewicz [2020] UKSC 23 which stated that all three questions outlined above must be answered affirmatively to establish the public interest defence.

As set out by Mr Justice Nicklin in Lachaux v Independent Print Media [2021] EWHC 1797 (QB), the first question was an objective one for the court, not the subjective judgment of a journalist or editor. In the present case, the court stated that it was not in dispute and it was ‘undoubtedly the case’ that each of the publications was on a matter of public interest or that it was part of a matter of public interest.

The second question concerns the defendant’s state of mind at the time of publication. Crucially, Ms Cadwalladr was required to prove to the court that she did believe that publication was in the public interest as opposed to demonstrating the belief which a reasonable person would have held. In relation to the second question, the court found that Ms Cadwalladr had given her evidence truthfully and therefore accepted that the second criteria was satisfied. Regarding whether publication was in the public interest, Ms Cadwalladr had stated it was ‘of the absolute highest interest’.

Thirdly, an objective assessment is required which, as stated by Mr Justice Nicklin in Lachaux, is ‘likely to be the major point of contention’. Was Ms Cadwalladr’s belief reasonable? The court referred to Ms Cadwalladr’s extensive writing about the EU referendum and noted that she had been writing for more than a decade about the impact of technology on society, including writing about Cambridge Analytica.

Therefore, the public interest defence applied until the joint statement between Mr Banks and the NCA. At that point, although the public interest defence fell away, Mr Banks had failed to prove that the TED Talk was defamatory after 29 April 2020.

Case details:

• Court: Media and Communications List, Queen’s Bench Division, High Court of Justice
• Judges: The Honourable Mrs Justice Steyn DBE
• Date of judgment: 13 June 2022