Leave.EU backer Arron Banks with Andy Wigmore (Photo by Dan Kitwood/Getty Images)

In harm’s way

What counts as serious harm in cases of libel?

Artillery Row

The hearing in Arron Banks’ appeal against Steyn J’s judgment in Banks v Cadwalladr took place on Tuesday, 7 February this month. Benjamin Williams KC, the barrister representing Arron Banks, made submissions to the Court of Appeal that gave strong grounds on which to believe that Steyn J had fallen into error in her assessment of serious harm. 

Williams first raised the issue of Cadwalladr’s tweet the night before the hearing. Typical to form, Carole Cadwalladr tweeted in a not entirely accurate way about the case, saying that the Banks had been found by Steyn J in the High Court to have had a “close” relationship with Russians. No such determination was made by Steyn J in the judgment. Cadwalladr also said that a “minor point of the judgement [sic]” was being appealed. Far from being a mere technicality, the issues on which the appeal turns made the difference between an unsuccessful claim and successful one. Cadwalladr, then, will and should be very concerned about the outcome in the Court of Appeal. 

To explain the background to the case, Carole Cadwalladr is an Orwell Prize winning freelance journalist who has been published in The Guardian and The Observer. She has a large following on Twitter. Cadwalladr has investigated the purported links between Russia and the 2016 UK vote to leave the European Union. As part of her investigation, she looked into the conduct of Arron Banks, a successful businessman, who controversially funded and co-founded Leave.EU, as well as funding UKIP. In a TED Talk made on 15 April 2019, entitled “Facebook’s role in Brexit — and the threat to democracy”, Cadwalladr said, “And I’m not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian government”. After receiving a pre-action letter in respect of the TED Talk, Cadwalladr tweeted on 24 June 2019: 

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. 

Banks commenced an action in defamation against Cadwalladr regarding these statements. In a preliminary issue hearing on meaning in the High Court, Saini J found that the tweet and the TED talk had the single meaning 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. 

In an attempt to stage a defence, Cadwalladr initially relied on the assertion that her publications were expressions of truth, but she abandoned that on 11 November 2020 and sent a letter to Banks containing an apology. She subsequently argued that she was acting in the public interest in publishing her material about Banks. Ultimately, Banks did not succeed because 1) he did not establish serious harm with regards to the Tweet. 2) Whilst the TED Talk did pass the serious harm threshold, Cadwalladr successfully relied on the defence of public interest until 29 April 2020 when the Electoral Commission concluded that there was no evidence that Banks had committed offences. 3) Although the public interest defence fell away after 29 April 2020, serious harm fell to be reassessed, and on that reassessment it no longer passed the serious harm threshold. 

Cadwalladr has presented Banks’ lack of success in the High Court as a full vindication of her, and her followers have said that the claim was an example of a SLAPP (or Strategic Lawsuit Against Public Participation). However, as mentioned, Cadwalladr did accept that she could not rely on the truth defence and did apologise to Banks by letter. She “succeeded” because of the operation of the public interest defence and the way in which serious harm was assessed. That is not a full vindication of her allegations. In light of that, Steyn J was keen to emphasise that Banks’ attempt to protect his reputation was legitimate, and that it was neither fair nor apt to say that the claim was a SLAPP, merely in an effort to intimidate. 

It would appear that Steyn J had made a plain error of reasoning

The issue which has arisen in the appeal is the approach by Steyn J as to the assessment as to serious harm. Steyn J said that the Tweet was not seriously harmful since “the number of people within the jurisdiction to whom the Tweet was published is likely to be only a fraction of the number who viewed the TED Talk”. Steyn J then quoted approvingly the apparent fact that the people who viewed the tweet “are likely to be persons within her own echo chamber” and that “it’s probably right that they wouldn’t have thought very much of [the claimant] by that time”. Those within the jurisdiction to whom the Tweet was published were likely to be people “whose opinion of the claimant was of no consequence to him”. In respect of the TED Talk, on a reassessment of serious harm after the public interest defence fell away, Steyn J found that the views at the period after 29 April would have been one tenth of the views from the previous year and, again, that the viewers for the later period would have been those who were already within Cadwalladr’s echo chamber whose opinion would be of no consequence to Banks. 

Before exploring the reasons why Steyn J had likely fallen into error, the nature of the serious harm assessment merits discussion. In Lachaux, Lord Sumption remarked that the Defamation Act 2013 had introduced the serious harm requirement under section 1(1) in an effort to “modify some of the common law rules which were seen unduly to favour the protection of reputation at the expense of freedom of expression”. The first stage of the common law test of defamation would be whether “the words tend to lower the plaintiff in the estimation of right-thinking members of society generally”. The serious harm stage under section 1 of the Defamation Act, then, would have regard to the consequences of the publication and not just to the publication itself. The means by which serious harm is calculated are not straightforward, but the extent of publication and the gravity of the statement is considered, alongside the status of the publication and nature of its audience, effects on the claimant and the reaction of those to whom the statement was published. 

Banks’ barrister, Benjamin Williams KC, first dealt with Steyn’s judgment in the appeal by challenging the reassessment of serious harm in relation to the TED Talk after the public interest defence fell away on 29 April 2020. He argued that the reassessment of serious was a misreading of the serious harm threshold requirement in section 1. The serious harm requirement was a threshold in order to establish that the elements of libel had been satisfied, assessing aggregate harm. The assessment would not be dependent on the application of any defences. Section 1 was part of a “holistic exercise” as to harm. If the defences would be partly available, according to Williams, that is a matter that should be addressed when assessing damages. If this argument is accepted, then TED Talk publication would be taken to be seriously harmful and defamation would be established. 

Williams then went on to argue against Steyn J’s findings as to serious harm. With regards to the assessment of the Tweet, that people who viewed it were likely to be in an echo chamber, it would appear that Steyn J had made a plain error of reasoning. That is in contrast to the then Warby J in Monroe v Hopkins, who said that: 

A person can have a low opinion of another, and yet the other’s reputation can be harmed by a fresh defamatory allegation. An example is provided by serious allegations made against a politician of a rival party. I have recently held that it does not follow from the fact that a publishee is a political opponent of the claimant, that they will think no worse of the claimant if told that he or she has covered up sexual abuse 

The later judgment in Riley v Sivier by Steyn J, citing Monroe v Hopkins, is quite striking in its difference of approach as to Banks v Cadwalladr

The fact that the Website was, politically, strongly left-wing and vociferously supportive of the (then) leader of the Labour Party, Jeremy Corbyn MP, whereas the claimant had been highly critical of anti-Semitism in the Labour Party under Mr Corbyn, and of his leadership on that issue, probably means that a significant proportion of the readers of the Article would have regarded the claimant as someone to whom they were politically hostile. But this does not lead to the conclusion that the claimant’s reputation could not be harmed in their eyes. 

To follow that logic, Banks’ reputation amongst the typical follower of Cadwalladr may not be high, given his views on the European Union and his campaign funding, but allegations concerning Banks’ relationship with the Russian Government and acceptance of foreign funding in breach of the law are significantly more grave, especially considering the attitude towards the Russian Government after the annexation of Crimea and the Salisbury Poisonings. 

Banks himself follows Cadwalladr on Twitter

The findings as to the existence of an echo chamber in relation to Cadwalladr were not convincing in any event. Cadwalladr is an Orwell Prize winning journalist who writes for two significant publications. Banks himself follows Cadwalladr on Twitter. People do not follow others on the basis of wholehearted agreement, particular when they are following journalists with reputations. They may disagree with the person they follow in terms of their politics, but nonetheless find their tweets to be worth seeing and nonetheless pay attention to apparently factual allegations made. Alternatively, they may partly agree with the person they follow, but have serious or partial disagreements on a number of matters. As Singh LJ commented in the appeal hearing, a “true echo chamber” would really be where the views of the followers “would be played back to them”. Moreover, retweeting, that is, sharing tweets with a wider audience, disseminates publication even to even wider groups of people. 

When it comes to the point that there was a “fraction” of the views of the TED Talk, the views would still have been high. The Tweet by Cadwalladr, even if it had 10 per cent of the views of the TED Talk, would have been in the hundreds of thousands. That approach, again, is in stark contrast to the judgment by Steyn J in Riley v Sivier, where the readership of the material was approximately 50,000 as compared to a Tweet which had been retweeted thousands of times. Williams pointed out that, although it was not possible to calculate a precise number of views of tweets when Cadwalladr’s Tweet in question was published, since changes put in place by Twitter’s new owner Elon Musk, it is possible to see views. Cadwalladr’s tweet on the night before the hearing had been viewed 224,000 times. This shows that Twitter views can reach very significant numbers. 

Very large numbers of views are not always a necessary condition of proving serious harm. A judgment, which was handed down in the High Court two days after the Court of Appeal hearing in Banks v Cadwalladr, did not strike out a libel claim concerning one defendant with 2,500 followers and another with around 180 on the grounds of substantial publication and that the claimant could be identified amongst the followers of the defendant. Although the judge also commented that a full hearing would be a more appropriate venue on which to make a proper determination of serious harm, it demonstrates that even in cases of few followers, the serious harm threshold may be overcome. 

It is also improbable to say that the views of the followers would have been of no consequence to Banks. The allegations were serious, and they reached a wide audience — a wide audience which would not only have consisted of dedicated followers of Cadwalladr, as explained. In Riley v Sivier, Riley may well have thought little of the people to whom the content about her was published, but the nature of the material was sufficient enough to cause harm. 

With regards to the TED Talk, Steyn J said again that there was a low viewership and that the viewers would have been in an echo chamber whose opinion would be of no consequence to Banks. The previous arguments regarding the Tweet apply to this. It should be observed that the very nature of TED Talks is to promote views to audiences less likely to be partisan and dogmatic, and that viewers are not confined only to Guardian or Observer readers with already immovable views against Banks. The discussion was on the subject of social media and Russian influence, which has attracted wide interest since stories on the US Election and the vote to leave the European Union have been given prominence. 

Whether or not the Court of Appeal finds these arguments convincing remains to be seen. It is true that the specific findings as to the assessment of serious harm will require a plain error before the Court of Appeal interferes with the High Court. However, it should be recognised that the arguments are highly persuasive. Cadwalladr’s allegations were grave, they were widely disseminated, her status as an award winning journalist (even if she is often derided) has meant that her statements have been taken seriously, and Banks did indeed believe that his reputation had been affected. It is possible, then, that the Court of Appeal will find in Banks’ favour. 

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