A much anticipated judgment was handed down today (13 June 2022), which saw Arron Banks lose his high profile claim against journalist Carole Cadwalladr.
Arron Banks, who was famously described as one of the “bad boys of Brexit”, has a colourful reputation. However, he successfully persuaded the court that although a tweet by Cadwalladr had not met the threshold for causing serious harm to his reputation, a talk given by Cadwalladr had caused serious harm to his reputation - overcoming one of the key thresholds to bringing a defamation claim.
After a preliminary hearing to determine the meaning of publications (a process commonly seen in libel cases which can often narrow the issues and potentially avoid trial - albeit not in this case), Cadwalladr abandoned a defence of truth. This meant she had to accept the court’s meaning of her publication that “on more than one occasion Mr Banks told untruths about his 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” was untrue - she did not intend to mean that this was important.
This meant Cadwalladr had to rely upon a defence of public interest.
What is a public interest defence?
A public interest defence allows a defendant to avoid criminality if they disclose classified information that they believe is in the public’s best interest.
While typically used by journalists, this defence may also be employed more often, as we move forward in its new era of social media where every individual can potentially publish to the world at large.
However, the requirements for a public interest defence are stringent. It requires a defendant to establish that:
they believe they were publishing in the public interest;
that belief was reasonable, having regard to all of the circumstances; and
there had there been a significant change in circumstances since the original publication, such that any defence should cease to apply
The court’s decision
The case was heavily contested and Mr Banks was found to have given evidence which was evasive and lacking in candour, which undoubtedly did not help him. Evasive or potential unreliable evidence given by a claimant can be the death knell for any claim. That is especially because appeals on findings of fact are notoriously almost impossible to bring successfully.
However, fundamentally, the burden to establish a public interest defence is on a defendant and it was accepted that she believed the publication was in the public interest.
Most importantly the court found that she had intended to convey a less serious, albeit still defamatory, meaning and it was not so obvious that the meaning she intended to convey was not the correct one as to bar the defence. That meant that the public interest defence was considered against her intended meaning, not as found by the court or argued by Banks.
In all the circumstances, and having reasonable grounds to have believed her intended meaning to be true, she succeeded in establishing a public interest defence.
That said, there was a significant change of circumstances when the National Crime Agency and Electoral Commission documents were published that rendered the reasonable belief that Cadwalladr had, no longer reasonable. However, crucially, no serious harm was established as arising from the defendant’s publication after that date.
What can we learn from this case?
The public interest defence, as set out in the Defamation Act 2013, is a new defence and this is an important test of the applicable principles.
It has also been seen by many as being a test of journalistic freedom where reasonable reporting is undertaken based upon the best available information but later turns out to be incorrect.
Some have viewed Bank’s case as a powerful, wealthy individual targeting an individual journalist; while others have taken the view that something was published which was untrue and a journalist should not be allowed to get away with even an innocent mistake of that nature. Bank’s history with Brexit means this case is fraught with political history and judgments. This is perhaps one of the best examples of why, unlike the USA, jury trials for defamation are a thing of the past.
Just as Johnny Depp lost in the UK, but won in the US based upon an almost identical alleged libel, Bank’s case may have played out differently before a jury. We will never know.
The key takeaway for journalists, whether they are high-profile professional ones, novices or potentially amateurs, can see the public interest defence as being open to them.
What should you do to if you’re planning to use a public interest defence?
Anyone seeking to publish and rely upon this defence must do their homework. It’s clear that the scope of research that the defendant had undertaken, as well as the diligent show, were vital in establishing the reasonableness of the belief that she then in turn had.
It may also be that this will also be a positive judgment for the standard of journalistic investigation, and research prior to publication may potentially be able to take the benefit of this defence.
Finally it is important to address some of the other comment about this case and libel law. Although libel cases are often expensive, to think of them as only for the rich is wrong; libel law and the same principles are there to protect anyone. Every business or individual has a reputation that can be seriously harmed by others and therefore protecting those is key.
It is also important not to lose sight of the fact that many people can be, and are, defamed by press, media or members of the public - business can be ruined or reputations smashed. Libel and slander laws must strike a balance; and the legal sector must help shape the law and protect wronged parties.
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