Journalist Carole Cadwalladr (Photo by Stuart C. Wilson/Stuart C. Wilson/Getty Images for The Business of Fashion)

The law is not a football match

Why are Carole Cadwalladr and her supporters claiming to be vindicated?

Artillery Row

The judgment in the Banks v Cadwalladr appeal was handed down this week on 28 February. Carole Cadwalladr, the respondent who had avoided having a judgment in defamation against her in the High Court, tweeted after the Court of Appeal’s judgment that it was “Absurd to suggest this is any way a win” for Banks. She emphasised that she had won “2 of 3 important grounds of principle”. Haroon Siddique in the Guardian, following that line, reported that “Arron Banks loses two of three challenges”. Hordes of Cadwalladr’s supporters hailed a victory, attacking Banks, who had claimed that the judgment was a vindication of him. 

It is surprising, to say the least, that Cadwalladr would present the judgment as a victory. At the conclusion of the High Court case, Cadwalladr was not found to be liable in defamation. She had successfully relied on a public interest defence, and Banks had not proved that the publications where the defence did not apply had overcome the serious harm threshold. Now, after the Court of Appeal judgment, Cadwalladr is liable in defamation for the continuing publication of a TED Talk, and there is an order that damages should be assessed. Cadwalladr had said prior to the hearing that a “minor” part of the judgment was being appealed. Yet, that minor point has now meant that Banks has succeeded on one of his grounds. 

You are hardly a victor if you are paying damages instead of buying champagne

Tallying an appeal as a 2-1 victory misses the point. Law is not a game of football. If a defendant at the Crown Court, for instance, is charged with several offences and is convicted of one, he has scarcely achieved startling success in being acquitted of the rest. The defendant will still be convicted. Cadwalladr calls Banks’ win on the third ground only a “technical” one, echoing similar language by Jolyon Maugham when he said that he lost only on a “deeply technical level”. The law, however, is technical. A victory on a technical matter makes the difference between overall success or failure, just as a “technical” problem with a computer can still cause it to break. It is unlikely that Cadwalladr will feel the rush of victory should she be ordered to pay damages and possibly significant costs to Banks. You are hardly a victor if you are paying damages instead of buying champagne. 

Carole Cadwalladr is an award winning journalist who has been published in the Guardian and the Observer. She also has a substantial presence on social media, with over 700,000 followers on Twitter. Following the UK’s decision to leave the European Union after the 2016 referendum, Cadwalladr decided to investigate links between the Russian Government and figures associated with the leave campaign. Arron Banks, a co-founder and funder of Leave.EU and previously a funder of UKIP, was one subject of her investigation. In a TED Talk 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. 

Saini J found after a preliminary issue hearing 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. 

Cadwalladr initially attempted to rely on a truth defence, but she abandoned that course on 11 November 2020 and sent a letter to Banks containing an apology. She subsequently argued that the publication was made in the public interest. 

In order to establish defamation, Banks needed to show that the publications caused serious harm pursuant to section 1 of the Defamation Act 2013. Serious harm has regard to the consequences of the publication. A court, in making an assessment, may take into account the extent of the publication, the gravity of the statement, the status of the publication, the nature of the audience, the effect on the claimant and the reaction of those to whom the statement was published. 

Banks did not ultimately succeed in the High Court. Steyn J found in her judgment that Banks did not establish serious harm regarding Cadwalladr’s tweet; that Cadwalladr successfully relied on a public defence with regards to the TED Talk until 29 April 2020 when the Electoral Commission concluded that there was no evidence that Banks had committed electoral offences; and after 29 April 2020 serious harm fell to be reassessed and the threshold was not passed on that reassessment. Particularly contentious was the finding by the judge that the publications had taken place in an “echo chamber”, and that the opinion of those to whom the material was published would be of “no consequence” to Banks and that serious harm was not therefore established. This varied with Steyn J’s later judgment in Riley v Sivier, where a publication which was even more likely to be disseminated to an “echo chamber” of Corbyn supporters was found to be seriously harmful. In any event, the result of the judgment was that Cadwalladr was permitted to keep up the publications which Banks had objected to, even though Cadwalladr had accepted that they were not true and even though the public interest defence no longer applied. 

Cadwalladr apparently did not attempt to remove the material long after she had apologised to Banks

Banks relied on three grounds of appeal to the Court of Appeal. First, the judge was wrong to hold that there should be a reassessment as to serious harm; second, that the judge was wrong to find that serious harm had not been established in respect of Cadwalladr’s tweet; and third, that the judge was wrong to have found that the serious harm had not been established in respect of Cadwalladr’s continuing publication of the TED Talk after 29 April 2020. 

Banks’ appeal was allowed on the final ground. Steyn J had erred in her reassessment of serious harm. There was no evidential basis on which the judge could conclude that the viewers of the publication would already have had such a perception of Banks, and there was no sufficient basis on which the judge could have concluded that their opinion was of “no consequence” to him. Had the public interest defence not applied up to 29 April 2020 regarding the Tweet, it is likely that the second ground of the appeal would have been allowed, too. “There clearly was substantial publication at around the time the Tweet was posted,” observed Warby LJ. The reassessment, however, was permissible only insofar as the continuing publication of the Tweet would have been more ephemeral. 

In light of the Court of Appeal’s decision, Cadwalladr’s public comment and the support of her followers appears to be unsustainable. Cadwalladr has repeatedly characterised the case as being a SLAPP (Strategic Lawsuit Against Public Participation). On 28 February, she said, “The judgment clearly underlines *exactly* why this is a SLAPP”. Steyn J herself expressly rejected this in the High Court, observing that it was a legitimate claim, which only failed to succeed in part because of the operation of the public interest defence and the operation of the relatively new serious harm threshold. It was not merely designed to intimidate. Steyn J “accepted the evidence” that was given on serious harm and the impact that the publications had on Banks. Labelling Banks’ claim as a SLAPP is even more outlandish now, since judgment is against Cadwalladr. Some groups have maintained that the judgment has a “chilling effect”, but Cadwalladr apparently did not attempt to remove the material long after she had apologised to Banks for making untrue statements about him. She could therefore have avoided the issues she now faces, had she been more careful.

Cadwalladr also complained of the “Kafkaesque ‘meaning’ of words that had never passed my lips”, which had been found by Saini J at the meaning hearing in her comment. It is clear from the judgment on meaning, however, that the context alongside the words spoken is key. Saini J said of the TED Talk:

the reasonable viewer would not consider (given what had been said immediately before these words) that Ms. Cadwalladr was making a generalised allegation that Mr. Banks had lied about the nature of his secret relationship with the Russian Government (in other words, that there was some non-specific improper relationship unrelated to any subject-matter). One cannot divorce the meaning from the broad context in which this allegation was made. That context appears in the remainder of the Talk and its most crucial aspect is that the relationship Mr. Banks is said to have had with the Russian Government is relation to the issue of improper foreign funding of electoral campaigns. That is the connection a reasonable viewer would make. 

It is not unusual for the wider context of words to be taken into account in such judgments. 

Cadwalladr makes much of the fact that Banks did not pursue the Observer or TED. However, the remarks made in the Observer were not particularly targeted at the funding of the referendum. The allegations she had made there were more careful than those made in the TED Talk and the Tweet, and they might not have carried the same single meaning as found by Saini J in respect of those two publications. Indeed, Saini J found in respect of a second Tweet and a Convention speech that Cadwalladr was saying that there were “grounds to investigate”, rather than the more serious meaning in the first Tweet and the TED Talk. Further, TED is not in this jurisdiction. Litigation would be more challenging with regards to that — a point which Cadwalladr concedes as if it supports her argument. Cadwalladr did make these statements on multiple platforms and continued publicising them. 

In a later comment, Cadwalladr said, “everything I did, my journalistic processes, the public interest of my journalism, the reporting of Bank’s Kremlin links has been categorically upheld by this judgment. She later announced, “I won the entirety of the main libel claim. The talk was lawful. This is, of course, ignoring the fact that she is now liable for defamation, that she apologised to Banks for making untrue allegations, and that she made no apparent attempt to either have the publications removed or amended or to make her apology publicly available. Banks did indeed lose on the public interest point, but the findings in the High Court and the Court of Appeal do not vindicate Cadwalladr’s claims about Banks in their entirety. Nor do they show her conduct in a particularly positive light. 

Cadwalladr and her many followers like to present themselves as fighting against the evil of fake news and manipulation. The right are continuously portrayed as being susceptible to populist rhetoric, particularly with regards to the EU referendum or the election of Trump in the US. Cadwalladr’s reaction to the judgment and the uncritical response of her fans shows that Guardian readers can be just as manipulative and manipulated, notwithstanding their illusions of superiority. A victory was hailed, and Banks was denounced for bringing a SLAPP. In spite of all of the evidence against both claims, hordes of Cadwalladr’s fans attacked Banks and anyone who pointed out that there had been a judgment in defamation — some even going so far as to make wild allegations of judicial corruption (as is screenshotted here). If there is value in truth, Cadwalladr and her followers should acknowledge that Cadwalladr experienced something short of a victory in the Court of Appeal judgment. Whether one approves of Banks and his politics or not, it is important to view his claim objectively, without descending into partisanship in one’s assessment of the truth.

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