August 8, 2022
Arron Banks, a businessman and one of the leaders of, and the largest donor to, the Leave.EU campaign, issued proceedings for defamation against award-winning investigative journalist Carole Cadwalladr in relation to a TED talk entitled “Facebook’s role in Brexit – and the threat to democracy”, which Ms Cadwalladr gave on 15 April 2019.
The words in the TED talk that Mr Banks complained about 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”.
Mr Banks also complained about a Tweet posted by Ms Cadwalladr, which provided a hyperlink to the TED talk, which stated:
“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”.
Initially, Ms Cadwalladr pleaded a defence of truth under s 2 of the Defamation Act 2013, as well as public interest under s 4. However, at a preliminary issues trial in December 2019 Mr Justice Saini determined that the single meaning of the words complained of in both the TED talk and the Tweet was:
“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”.
As a result, Ms Cadwalladr withdrew her defence of truth. She also sent a letter of apology to Mr Banks in March 2021, stating that: “It was not my intention to make any such allegation and I accept that such an allegation would be untrue”.
Ms Cadwalladr also repeatedly labelled the claim a SLAPP suit, i.e., a strategic lawsuit against public participation, designed to silence and intimidate her.
The issues for determination were whether Mr Banks had proved that the publications had caused and/or were likely to cause serious harm to his reputation and whether the public interest defence succeeded.
In terms of the TED talk, Mrs Justice Steyn DBE found that the single meaning clearly imputed serious, repeated dishonesty on the part of Mr Banks about serious matters, namely a secret relationship he had with a potentially hostile foreign power for the unlawful and improper purpose of accepting foreign funding for an electoral campaign.
Looking at the global publication figures, Steyn J found that it was inherently probable that there had been substantial publication in this jurisdiction of the TED talk, at least equivalent to a high circulation domestic newspaper.
Steyn J said that the evidence of any impact of the TED talk on Mr Banks’s reputation and business prospects was negligible and there was no evidence from anyone specifically that, as a result of seeing the TED talk, their opinion of Mr Banks was lowered. However, it could be inferred that a sizeable number of people who knew Mr Banks would have seen the TED talk and believed what was said about him, lowering his reputation in their eyes. This was the proper inference to make given the extent of publication, the gravity of the single meaning, the serious nature of the TED talk, the fact that it was given by an award-winning investigative journalist, and the authoritative and credible nature of the international platform on which it was given.
Accordingly, Steyn J held that Mr Banks had established that publication of the TED Talk had caused serious harm to his reputation.
As for the Tweet, Steyn J found that the gravity of the imputation was the same, given that the single meaning was the same, and the lack of direct evidence that Mr Banks had been shunned or lost business was also the same. However, the number of people within the jurisdiction to whom the Tweet was published was likely to be only a fraction of the number who viewed the TED talk. The numbers supported the normal inference that access to the Tweet would have peaked at or shortly after the time of first publication. There was therefore no probability of future harm flowing from the Tweet.
Further, it could reasonably be inferred that the majority of Ms Cadwalladr’s followers on Twitter were likely to be those within her own “echo chamber” who would not have thought much of Mr Banks by that time and whose opinion of him was of no consequence to Mr Banks.
Accordingly, Steyn J was not persuaded that the Tweet had caused serious harm to Mr Banks’s reputation.
There was no dispute that each of the publications was, or was part of, a publication on matters of public interest.
As for Ms Cadwalladr’s belief that publication was in the public interest, Steyn J found that Ms Cadwalladr honestly, indeed fervently, believed when she gave the TED talk, and continued to believe, that publication was not only in the public interest, but that it was a matter (as she put it) “of the absolute highest public interest” to highlight the vulnerability of our democracy.
As for whether Ms Cadwalladr’s belief was reasonable, Steyn J found that Ms Cadwalladr genuinely had not appreciated that the words she had spoken could carry the single meaning found by Saini J. In Steyn J’s view, the meanings Ms Cadwalladr had intended to convey were that: (i) Mr Banks had lied on more than one occasion about a secret relationship he had with the Russian government; and (ii) there were questions to be asked (i.e., grounds to investigate) whether the source of his donations was foreign funding, accepted in breach of the law on the funding of electoral campaigns. Ms Cadwalladr did not intend to say that Mr Banks had accepted Russian or other foreign funding and, in Steyn J’s view, this aspect of the single meaning was not so obvious that it was unreasonable for Ms Cadwalladr to have failed to appreciate it.
Therefore, it followed that the public interest defence fell to be assessed in respect of the less damaging meaning that Ms Cadwalladr had intended to convey.
Steyn J considered in detail the facts and evidence on events, articles, interviews, meetings and research, including a cache of Mr Banks’ emails that Ms Cadwalladr had received, and found that when Ms Cadwalladr gave the TED talk, she had reasonable grounds to believe that her intended meaning the Mr Banks had lied about his relationship with the Russian government was true. For example, before disclosure of the email cache to Ms Cadwalladr, Mr Banks had publicly disclosed having attended two lunches with the UK Russian ambassador but, in a subsequent press release, had said that his “sole involvement” with the Russians was just one lunch. Further, the cache of emails later showed that there had been a series of invitations from and to the UK Russian ambassador, many of which had been accepted. Additionally, the email cache showed that Mr Banks had been offered preferential shares in an investment scheme to consolidate several Russian goldmines and the privatisation of a state-owned Russian diamond company, Alrosa, none of which had been disclosed by Mr Banks.
As for the alleged “covert” nature of Mr Banks’ relationship with the Russian government, Steyn J noted that, to a certain extent, the relationship was overt, as Mr Banks had publicly disclosed some of his meetings. However, there were many aspects of his relationship that remained undisclosed. Further, the evidence showed that, in describing the relationship as “covert”, Ms Cadwalladr was conscious that some aspects of the relationship had been made public.
Steyn J also found that, on the evidence, Ms Cadwalladr had reasonable grounds to believe that: (i) Mr Banks had been offered “sweetheart” deals by the Russian government in the period running up to the EU Referendum, although she had seen no evidence he had entered into any such deals; and (ii) Mr Banks’s financial affairs, and the source of his ability to make the biggest political donations in UK history, were opaque. Most importantly, when Ms Cadwalladr had given the TED talk, the Electoral Commission had already announced that it had reasonable grounds to suspect that Mr Banks was not the true source of the £8 million donations. In addition, the matter had, by this time, been referred to the National Crime Agency.
Accordingly, Steyn J found that Ms Cadwalladr’s belief that publishing the TED talk was in the public interest was reasonable.
However, Mr Banks said that there had been a significant change of circumstances when both the Electoral Commission and the NCA had concluded that there was no evidence of any criminal offences having been committed and no evidence that Mr Banks or his companies had received funding from any third party in relation to the political donations. Further, Mr Banks said, Saini J’s single meaning ruling had also significantly changed things as it had led to Ms Cadwalladr’s abandonment of her truth defence and her acceptance that the single meaning was untrue. Mr Banks said it was no longer reasonable after this point for Ms Cadwalladr to believe that publication of the TED talk was in the public interest.
In Steyn J’s view, none of these events had any impact on Ms Cadwalladr’s intended meaning that Mr Banks had lied about his relationship with the Russian government. However, the events did affect her intended meaning that there were questions to be asked over the source of Mr Banks’s political donations. Accordingly, the public interest defence fell away on 29 April 2020 when the Electoral Commission and Mr Banks had given a joint statement referring to the results of both the Electoral Commission and NCA investigations.
Steyn J also said that at the point the TED talk was given, Saini J’s ruling on the single meaning could be discounted because it was not so obvious that it was unreasonable of Ms Cadwalladr not to have appreciated it. However, once the ruling had been made and Ms Cadwalladr had abandoned her truth defence on 11 November 2020, it could no longer be said that the single meaning was not one that Ms Cadwalladr should have appreciated. Accordingly, had she not found that there was a significant change of circumstance on 29 April 2020, Steyn J would have found such a change on 11 November 2020.
Given these findings, Steyn J revisited the serious harm test in respect of the TED talk from 29 April 2020 onwards, finding that, as a result of a decline in the numbers of people who would have seen the TED talk after this date, Mr Banks had not established serious harm for that period. Accordingly, the claim in respect of publication of the TED talk from 29 April 2020 onwards was dismissed.
Finally, Steyn J disagreed with Ms Cadwalladr that the claim was a SLAPP. Although Mr Banks’s claim had failed, his attempt to seek vindication through these proceedings was legitimate. Given that Ms Cadwalladr had no defence of truth, and her defence of public interest had succeeded only in part, it was neither fair nor apt to describe this as a SLAPP suit.
The claim was dismissed. (Arron Banks v Carole Cadwalladr  EWHC 1417 (QB) (13 June 2022) — to read the judgment in full, click here).