Introduction to the case
Arron Banks is an outspoken Bristol-based businessman who founded Leave.EU. He donated huge sums of around £9 million, towards Brexit campaigns in 2016. Carole Cadwalladr is an award-winning journalist who has spent the last decade writing, mostly for the Observer, about the role of tech companies and big data in democracies, and the risk that they pose. She broke the story of Cambridge Analytica and continued to investigate threats to our electoral systems from dark money and Russia, among other things.
During 2018, Ms Cadwalladr wrote a series of articles about Arron Banks. She was interested in the origins of the money he had donated to leave campaigns and had noted in his book his ‘boozy lunch’ with the Russian Ambassador. Initially, she wrote a profile, but later that year, she received a cache of his emails. These showed how he and his colleague Andy Wigmore had met Russian officials many times more than he had originally admitted, or than he had claimed to a Parliamentary Committee. They also showed that the Russian officials were suggesting potentially profitable business deals to the pair, and cut-price investments involving gold and diamonds.
These emails were to form the basis of an exposé in the Observer, but before the publication date, The Times scooped the story, with the collaboration of Mr Banks. The Times, the Guardian and others reported how Mr Banks had misled everyone about the number, and nature, of his covert meetings with Russian officials. Throughout the next year, this allegation was made by multiple media outlets. But it wasn’t until Ms Cadwalladr gave a TED Talk in April 2019 that Mr Banks decided to sue. The talk was entitled ‘Facebook’s role in Brexit – and the threat to democracy’. It was about whether or not systems that are supposed to protect democracy are fit for purpose in an era of social media, tech giants and dark money in election systems. She referred, briefly, to Mr Banks by saying ‘I won’t even go into the lies Mr Banks has told about his covert relationship with the Russians’.
That sentence forms the basis of the libel claim that Mr Banks then issued in July 2019. After initially suing on other statements, Mr Banks dropped those and focussed on the TED talk and a later Tweet in similar terms. Ms Cadwalladr defended her talk on the basis that it was true and that it was in the public interest – defences now given statutory life as s.2 and s.4 of the Defamation Act 2013. At a meaning hearing with judgment handed down in 2020, Mr Justice Saini determined the single meaning of the words, after which Ms Cadwalladr dropped the truth defence, recognising that the meaning found by Mr Justice Saini was not one she meant to convey and not one she believed to be true, or could prove to be true. Battle lines drawn, the trial took place in January 2022.
The judgment in this extremely controversial case was handed down on 13 June 2022. The headline news is that Ms Cadwalladr won, Mr Banks lost. In our binary adversarial system, that is what matters. It means that Mr Banks will have to pay all the costs – his own and Ms Cadwalladr’s – which will run into millions. History will recall that she was the victor, that the public interest overcame self-interest.
However, there are some important nuances to consider.
The judgment – an overview
The judge (Mrs Justice Steyn) had to decide a number of questions. Firstly, whether the publications caused serious harm to Mr Banks’s reputation – the statutory threshold for bringing a libel claim. If so, she had to decide whether Ms Cadwalladr was able to establish her public interest defence – was the publication lawful, even if it had caused serious harm? That defence requires the court to decide if the publication was generally in the public interest, if so, whether the Defendant believed it was in the public interest to publish, and if they did, whether that belief was objectively reasonable. In the circumstances of this case, it meant an analysis of everything Ms Cadwalladr did and thought before publication in order to decide if it was reasonable for her to believe that the allegation she made was true, and if there was sufficient evidence to make the claim at the time.
Mr Banks sued on two different publications. He was able to establish that the first one, a sentence in a TED Talk, ‘And I am not even going to get into the lies that Arron Banks has told about his covert relationship with the Russian Government’ caused serious harm to his reputation, and so got over the statutory threshold. But the second one, a later Tweet published in response to the letter of claim, did not reach the threshold and was dismissed at the start.
Having established that, the onus shifted to Ms Cadwalladr to establish that it was in the public interest for her to make the allegation that she did, that it was reasonable for her to believe that she should have spoken those words, that they were important. She explained that what she said in the TED Talk was meant to indicate that Mr Banks had lied about his meetings with the Russian officials in the Embassy, that this was significant, and that there should be further investigation into Brexit funding and Russian ties.
The judge decided that it was reasonable for her to take that view, and in the public interest for her to publish the words in the circumstances at the time. After the National Crime Agency (NCA) and others concluded their investigations in June 2020, the judge found that it was no longer in the public interest as circumstances had changed, but that it didn’t matter because by that stage there was no serious harm caused to his reputation. If the TED Talk was in the public interest from the date of its publication until the date when the NCA concluded its investigations, then the publication was lawful until that date. So, the judge found that the court would have to look at whether any serious harm was caused to Mr Banks’s reputation by the TED Talk after that date – she found it was not. The logic is slightly odd, but it would be even more so if the judge decided that damage caused by a lawful publication could be taken into consideration – another of those legal sense compromises.
The judge then went on to discuss the witnesses.
She considered that Mr Banks was mainly truthful, particularly about the impact the TED Talk had had on him (albeit that his main worry was the international audience and his international reputation) but otherwise was at times ‘evasive’ and ‘lacking in candour’. Judge speak for ‘I don’t really believe all that.’
In contrast, the judge’s assessment of Ms Cadwalladr as ‘evasive’ focussed on her attempts to work out where the line of questioning was going, and acknowledged that she was stressed but truthful. Judge speak for ‘I believe you and I know this is difficult, but I wish you’d just answer the question’.
The judge plainly considered Ms Cadwalladr to be honest, and that any inaccuracies in her statement were minor and meant nothing, or were forgivable in the circumstances. A very fair assessment.
There has been some confusion about the judgment – supporters of Mr Banks have queried how Ms Cadwalladr can have succeeded if the words were defamatory, the public interest defence was not wholly successful, and she did not establish a truth defence. It is not straightforward, but broadly the judge decided that the TED Talk was defamatory and caused serious harm, but was lawful because it was in the public interest to make the allegation – that is a complete defence. After June 2020, the TED Talk was defamatory, and there was no longer any public interest defence available, but Mr Banks’s case was dismissed because there was no serious harm caused. The Tweet never caused serious harm so that was dismissed too. A full house for Ms Cadwalladr.
The other notable thing about the judgment is the careful, very lengthy section, setting out precisely why the judge found that it was reasonable for Ms Cadwalladr to have published the allegation. It is possible that if the meaning had been determined slightly differently, as Ms Cadwalladr argued it should be, a truth defence could have succeeded.
This raises the awkward question of meaning in libel cases. In an attempt to replicate how an ordinary reasonable reader would understand the words, the law has developed a convoluted, awkward, and often inappropriate mechanism that adopts the fiction that every publication has a single meaning. In reality, different people interpret things differently. It often depends on who they are, where they are, what else they read, their mood and so on. In a world where there are multitudinous versions of the ‘truth’, it is rather naïve for the law to assume that there exists one meaning, understood by a reasonable reader who is neither ‘avid for scandal’ nor ‘unduly cynical’ (as the older case law requires).
In the absence of such an actual person, the court steps in and a High Court judge assumes the mantle. As you can imagine, it leads to bizarre results. In this case, the judge who decided on the meaning of Ms Cadwalladr’s Tweet (Mr Justice Saini), came to the conclusion that it meant:
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.
This was a suggestion that Mr Banks and the Russians had meetings explicitly about accepting foreign funding (unlawfully). It is not something that Ms Cadwalladr intended to say, or said on other occasions, or that the Bindmans Media and Information team (who represented her at the time) ever thought the words could mean. It is not even something that Mr Banks thought the words meant. In fact, no one had ever suggested that meaning.
Ms Cadwalladr had never said that Mr Banks had ever accepted any money from Russia – she had never thought that he did. Nor did she think that the discussions with Russia got to that point. What she wanted to do was to expose the fact that Russia was offering business deals to, and making contact with key players in the Brexit campaign, and was tailoring those deals to the interests (and vanity) of Mr Banks and his sidekick. That is an interesting and important observation in light of interesting and important email leaks of contact between the Russian Embassy and the key Brexit funder and campaigners. She believed there were questions about the source of the money Mr Banks donated to the Leave campaign, that it could be unlawful foreign money, and the information should be made public and required further investigation.
Nevertheless, Mr Justice Saini decided the words meant something else. Once the decision was made, that was the only meaning that mattered, and the rest of the case turned around it.
At this point, Ms Cadwalladr was forced to drop her truth defence. So, if the case turned around the judge’s new single meaning, how could Ms Cadwalladr defend the talk at all? Happily, thanks to the Privy Council in a case called Bonnick and Morris some years ago, the Defendant can rely on their own understanding of the words they published (providing it is a reasonable understanding) when arguing a public interest or responsible journalism defence. As the judgment notes, the court has accepted in other cases that the single meaning rule is ‘highly artificial’ and not appropriate when considering an issue which needs to take account of all the circumstances, editorial judgement and the detail of how a journalist puts a story together.
So, the question for the court was whether or not Ms Cadwalladr believed, and it was reasonable for her to believe, that it was in the public interest to publish that the sentence in the TED talk, as she understood it, not as the court understood it. It is puzzling to some why that amount of time and money was spent on the meaning in the first place, but then it is important to remember that without any meaning determination, the parties flail around on parallel tracks, never actually meeting each other’s case. Still, there must surely be a better way.
This defence has to be taken in stages.
Firstly – was the subject matter in the public interest? The TED talk was about risks to our electoral system from data and dark money, and everyone agreed that it was squarely a public interest subject. The judge left no room for doubt, saying ‘I accept the TED Talk was political expression of high importance, great public interest (in the strictest sense), not only in this country but worldwide’.
The next stage was whether the Defendant, Ms Cadwalladr, believed that it was in the public interest to publish the specific allegation, with the meaning she thought it had. The judge did not find this difficult, saying:
I have no doubt that Ms Cadwalladr honestly, indeed fervently, believed when she gave the TED Talk and continues to believe that publication was not only in the public interest, but that it is a matter (as she put it) “of the absolute highest interest” to highlight the vulnerability of our democracy.
Finally, the court had to decide whether Ms Cadwalladr’s belief was reasonable, objectively. This is not the same exercise as deciding whether the words were true; it can often be reasonable, or even important to publish things that later turn out to be wrong in some way.
In an interesting and topical section of the judgment, the judge set out the context in 2018 – the dawning political realisation of the extent of interference by Russia in European countries, from aggression in Crimea and the Donbas, to digital manipulation and interference in elections. She accepts that Ms Cadwalladr knew this information and that it fed into her reporting.
She then went through the landscape in which the TED talk actually appeared – including Ms Cadwalladr’s own expertise and writing on the issue of data and democracy; Mr Banks’s own pro-Russian Tweets (including ‘Ukraine is to Russia as the Isle of Wight is to the UK. It’s Russian’ on 13 February 2017), and the views of others about Mr Banks at the time.
The judge clearly explains the breadth of Ms Cadwalladr’s research on the issues of funding for Brexit, the role of technology and the possibility of Russian interference. She had spoken to at least 11 experts on Russia, read everything she could find on Arron Banks and his background, interviewed him and Andy Wigmore, followed developments in the Mueller investigation closely and continued to investigate Cambridge Analytica. The judgment gives the impression that the judge considered that there was no one writing in the press on this subject with greater expertise and knowledge at the time.
The judge then described Ms Cadwalladr’s receipt of leaked emails which showed for the first time that Mr Banks had had a number of other meetings with officials at the Russian Embassy. It had thus become clear, that he had kept these secret, had not been honest about the number of meetings he had actually had, and that he had been offered preferential deals in Russian Gold and diamond interests.
Next, the judge went through the period leading up to the first publication of the news that there had been secret meetings with the Russian officials, and what that might mean. She details the allegations made in the Sunday Times about Mr Banks’s ‘Kremlin connection’, and what appeared to be attempts to seduce the Brexit funders by Putin’s Russia. The judge quotes at length from Ms Cadwalladr’s reporting of these emails, including the following passage:
…what we appear to see through Banks and Wigmore is a linked series of relationships between the Trump campaign – via Steve Bannon – to the public face of Leave.EU’s campaign, Nigel Farage. Through Farage to Banks and Wigmore. And through Banks and Wigmore to the Russian government. Whether it’s a channel for anything else is for other specialist investigators to figure out. Because ever since Watergate, we’ve known that you need to follow the money.
This was in 2018. The judge reports how the evidence continued to mount, and Ms Cadwalladr and others continued to report. She sets out the linked Information Commissioner’s Office (ICO), Electoral Commission and NCA investigations, and reports into the referendum, and businesses and campaign groups operated by Mr Banks. The judge also covers at length Ms Cadwalladr’s evidence about her detailed investigations into the (opaque) sources of Mr Banks’s apparent wealth, and the suggestions made by others that the opacity of the structures could easily conceal money laundering, and that there was widely considered, by financial reporters and experts, to be a significant mystery about where the money that financed Brexit had come from. Dark money in our democracy.
The judgment moves on to the issue of Mr Banks’s many shifting versions of his contacts with the Russian Embassy. Although he continued to maintain that no Russian money went into Brexit, he gives varying accounts of social interactions or business propositions involving Russian diplomats. The impression given by the judgment is that it is not surprising that Ms Cadwalladr was concerned about these, and that the real situation was very different from the one that Mr Banks was trying to establish. Ms Cadwalladr’s vain attempts to engage Mr Banks in providing a sensible comment in response to her allegations are set out, not without a hint of sympathy and shared frustration.
The final decision
In answering the final question, was it objectively reasonable for Ms Cadwalladr to publish the words, the judge has little doubt:
In the TED Talk Ms Cadwalladr made a serious contribution to the discussion of a subject that was of real and abiding public interest at the time of publication. Moreover, the words complained of were themselves on an important matter of public interest. It was reasonable for Ms Cadwalladr to regard those words as forming part of the story that she was telling about the potential for targeted political advertising on social media to undermine democracy. In this regard, I bear in mind that it is appropriate to make proper allowance for editorial judgment…
The judge then goes further than this, and decides that Ms Cadwalladr had reasonable grounds for believing, specifically:
- That Mr Banks had lied about his meetings with the Russians. At the very least, and contrary to what he had said, ‘Mr Banks’s ‘involvement with ‘the Russians’ extended beyond a single lunch to the meeting with the Russian ambassador and Mr Povarenkin, and to communications with Mr Povarenkin and Mr Udod over a period of months regarding the Russian Gold Consolidation Play.’
- That (at least some of) the meetings were covert
- That more investigation was needed into whether the Brexit campaign had accepted any funds from Russia
The impact of the decision – analysis
That is a resounding win for the public interest defence. In light of all the investigations undertaken by Ms Cadwalladr, all the things she knew about Mr Banks, his money, the meetings with Russian officials and the question marks over the funding of Brexit, it was absolutely reasonable for her to believe that Mr Banks had told lies about his covert relationship with the Russian government and that there were grounds to investigate whether that relationship involved illegal funding of Brexit. It was therefore reasonable to believe that it was in the public interest to publish it. The judgment is clear and forceful on this issue. It is difficult to see how any appeal could succeed in relation to the public interest defence. The only legal question of any real controversy relates to the issue of serious harm following June 2020, and the judge appears to be right on that too, particularly given the total lack of evidence of any serious harm at that point.
So that is how Ms Cadwalladr won the claim, even though she had to drop her truth defence along the way. The judge went as far as she could in finding that, objectively, Ms Cadwalladr’s reporting was reasonable. The judge was not asked to decide if ‘in fact’ Mr Banks had told lies about his covert relationship with the Russian government and there were grounds to investigate whether that involved unlawful acceptance of foreign funding – that question had been taken out of the equation by Mr Justice Saini’s meaning decision. But there is no doubt in the judge’s mind that it was reasonable for Ms Cadwalladr to believe it was true at the time she gave the TED Talk.
However, that only goes so far as 29 June 2020 when the various investigations into Mr Banks concluded. At that point, according to the judge, it was no longer reasonable to believe that the issue of unlawful funding of Brexit required investigation – the investigations had taken place and concluded without any penalty or finding of wrongdoing by Mr Banks. And soon after Mr Justic Saini handed down his judgment on meaning. That was long after the TED talk, but in the end, it didn’t actually matter to the claim because Mr Banks had not established that publication after that date caused him any serious harm. That part of the claim was also dismissed.
So even though Ms Cadwalladr couldn’t prove the ‘meaning’ of the allegation (as found by Mr Justice Saini) and even though the publication was not in the public interest after 29 June 2020, the claim was dismissed as a whole. No damages are payable. Mr Banks will have to pay the whole of the (extremely substantial) bill.
This is as strong a vindication of Ms Cadwalladr’s reporting as is possible in circumstances where the ‘meaning’ (as determined by a judge) does not match the meaning (as intended by the publisher). It is also a painful and humiliating loss for Mr Banks, who can expect further examination of his part in our politics, as well as the financial hit.
Given the intensity of her cross examination and the magnifying glass applied to her investigation – everything she read, said, and wrote over three years – Ms Cadwalladr might have expected to be greater criticised. That she was not is an encouragement to her and the vital role of fearless reporting in the public interest.
The judge said little about the issue of strategic lawsuits against public participation (SLAPPs), and that is not surprising. Despite the amount of reporting on the issue, we currently have no commonly understood definition of a SLAPP. In its substance and on purely legal grounds, this was not an unusual libel action, and it was not a case which could have been struck out as unmeritorious. What was unusual and unacceptable about it was the context. It was a claim brought against an individual (female) journalist for something which she had previously said in very similar terms in the Guardian and Observer, and had been said by many other media organisations, without any claim being brought. Mr Banks specifically chose to sue Ms Cadwalladr personally, rather than taking the more usual course of suing a media organisation (which apart from anything else, is likely to have insurance). The claim was accompanied by misogynistic taunting – only some of it by Mr Banks of course – all of which made it feel as though the court processes were being co-opted in the service of a personal vendetta.
If that was true, it has sadly achieved some of its aim of causing years of stress to Ms Cadwalladr, but not all. This significant victory remains a very important comfort for those who bravely write about the most controversial of political subjects.
Tamsin Allen, partner at Bindmans LLP and Head of our Media and Information team represented Ms Cadwalladr from 2019-21. If you require advice on the topics covered in this article, get in touch here.