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Cite as: [2023] EMLR 14, [2023] 3 WLR 167, [2023] WLR(D) 105, [2023] KB 524, [2023] EWCA Civ 219

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		Neutral Citation Number: [2023] EWCA Civ 219
		Case No: CA-2022-001390

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Mrs Justice Steyn
[2022] EWHC 1417 (QB)

Royal Courts of Justice
Strand, London, WC2A 2LL

28/02/2023

B e f o r e :

DAME VICTORIA SHARP, PRESIDENT OF THE KING'S BENCH DIVISION
LORD JUSTICE SINGH
and
LORD JUSTICE WARBY
____________________

Between:

	ARRON BANKS	Claimant/ Appellant
	- and -
	CAROLE CADWALLADR	Defendant/Respondent

____________________

Benjamin Williams KC and Richard Munden (instructed by Lysander Law Limited) for the Appellant
Gavin Millar KC and Aidan Wills (instructed by Reynolds Porter Chamberlain) for the Respondent

Hearing date: 7 February 2023
____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 14:00pm on Tuesday 28 February 2023

LORD JUSTICE WARBY :

Summary

The claimant sued the defendant for libel in a talk ("the TED Talk") and a tweet ("the Tweet") each of which suggested that the claimant had secretly broken the law on electoral funding by taking money from a foreign power and lied about the matter. The TED Talk and the Tweet were published online to a substantial audience in this jurisdiction. By the time of trial official investigations had found no evidence that there had been any such breach of the law. A defence of truth had been abandoned. The defendant had apologised. But she relied on the statutory defence of publication on matters of public interest.

The trial judge dismissed both claims, holding that although the initial publication of the TED Talk had caused serious harm to the claimant's reputation it was protected by the public interest defence; later publication of the TED Talk was not so protected but had not caused serious harm and was therefore not actionable; as for the Tweet, its publication would have been protected by the public interest defence to the same extent as the TED Talk but none of it was actionable anyway as it had not caused any serious harm to the claimant's reputation. The claimant now appeals.

The appeal raises three issues about the interpretation and application of section 1(1) of the Defamation Act 2013 ("the 2013 Act"). This provides that "a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant". This is sometimes referred to as the serious harm requirement.

The first issue concerns the meaning of section 1(1) and its relationship with section 4(1) of the 2013 Act in a case of continuing publication. Section 4(1) provides that "[i]t is a defence to an action for defamation for the defendant to show that (a) the statement complained of was, or formed part of, a statement on a matter of public interest; and (b) the defendant reasonably believed that publishing the statement complained of was in the public interest.". Where the defendant has a public interest defence which falls away, is the fact that the first, lawful phase of publication caused serious harm to the claimant's reputation enough as a matter of law to justify a judgment for the claimant in respect of the second phase?

The trial judge said that it is not. She held that in such a situation it is necessary for the claimant to prove that that publication in the second phase has caused serious harm or is likely to do so. The claimant challenges that conclusion but in my view it was correct. The effect of section 1(1) of the 2013 Act is that a statement is only to be regarded as defamatory if and to the extent that its publication causes serious harm to reputation or is likely to do so; publication that does not cause serious harm and is not likely to do so is not actionable. The judge was therefore right to consider whether the claimant had shown that the second phase of publication of the TED Talk had caused serious harm to the claimant's reputation or was likely to do so.

The second issue is whether the judge's approach to the question of whether serious harm was established was wrong in law. The claimant makes three main points on this issue. He argues that the judge failed to focus on the actual scale of the publication with which she was concerned, looking instead at how it compared with the scale of other publications; that her conclusion that harm was diminished because most of those to whom the relevant publications were made were in the defendant's "echo chamber" was legally wrong or untenable on the evidence; and that her finding that harm was reduced because many of the publishees were people whose opinion of the claimant was of "no consequence" to him was also wrong in law. The judge is said to have made all three mistakes when dealing with the TED Talk and with the Tweet.

I am not persuaded that the judge made the first of the alleged mistakes, but I have concluded that she did make the second and the third of them. If what the judge meant by the term "echo chamber" was that most of the publishees were people who disliked or had a generally low opinion of the claimant that was irrelevant to the question she had to decide. If, as I believe, what she meant was that in the minds of most publishees the claimant already had a bad reputation for the specific misconduct of taking foreign money in breach of electoral law and lying about it the evidence did not allow such a finding. The judge's finding that harm to the claimant's reputation in the eyes of these publishees was of "no consequence" to him was also unsustainable. If she meant that the claimant did not care what these publishees thought, that was legally irrelevant to the issue of whether serious reputational harm was established. There was no evidence to support a conclusion that others' adverse opinions of the claimant were of "no consequence" to him in the sense that they could have no practical impact upon his life.

The third issue is whether these errors of principle invalidate the judge's overall conclusions and her decision to dismiss both claims. The claimant argues that they do, and that on a proper application of the law to the facts of the case it was not open to the judge to dismiss either claim. He says the only legitimate conclusion is that the serious harm requirement was satisfied and so there should be judgment for the claimant. This argument is advanced in respect of the TED Talk and the Tweet.

I would accept these submissions so far as the TED Talk is concerned. The TED Talk conveyed a serious allegation, involving dishonesty and breach of electoral law, which was inherently likely to cause serious reputational harm. On any view there was extensive publication of the TED Talk in this jurisdiction in phase two. The judge rejected the defendant's attempt to show that the claimant had a pre-existing bad reputation. Her own reasoning about an "echo chamber" and the lack of any "consequence" was unsound as I have said. There was nothing else to act as a counterweight to the natural inference that publication in phase two had caused serious harm to the reputation of the claimant. The precise measure of that harm remains to be assessed but it is not possible to conclude that it was not "serious". To that extent, I would allow the appeal against the dismissal of the claim in respect of the TED Talk.

The position in respect of the Tweet is different. Although it conveyed the same serious imputation as the TED Talk the judge found that its publication peaked at or near the time it was first posted, after which it fell further and further down the defendant's timeline, as one would expect. For 10 months any publication was protected by the public interest defence. In my judgment, whatever might be said about harm caused by the initial phase of publication, there was no basis for any inference that there was any publication of the Tweet in phase two that caused any serious reputational harm. To that extent the judge was clearly right. I would therefore uphold her decision in respect of the Tweet and dismiss that aspect of the appeal.

The background to the appeal and the reasons for my conclusions on all these issues are set out in more detail in the remainder of this judgment. I address the consequences of my conclusions at the very end of the judgment.

The claim and the issues

The claimant is a businessman who was a leader of the campaign for the UK to leave the EU. The defendant is a freelance journalist and writer. The TED Talk was given by the defendant on 15 April 2019 at the TED2019 Conference in Canada. It was recorded and thereafter published on the TED.com website. The words complained of 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." The claimant's solicitors wrote a pre-action letter complaining about the TED Talk. On 24 June 2019 the defendant posted the Tweet. The words complained of were: "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." The Tweet contained a hyperlink to the TED talk. The claimant brought this action.

The defendant has never disputed her responsibility for either publication. There was a trial of preliminary issues at which the natural and ordinary meaning of each was determined by Saini J. He held that the words complained of in the TED Talk meant, in their context, 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". He held that the Tweet bore the same meaning. This was because the hypothetical ordinary reasonable reader of the Tweet would have followed the link to the TED Talk. That meaning was held to be defamatory at common law.

Some months later, the defendant abandoned her pleaded defence of truth and apologised, saying that it was not her intention to make any such allegation which she accepted would be untrue.

She also dropped a limitation defence. But she did not concede liability. She relied, as she had from the start, on the public interest defence. Her case was that she had intended to convey less serious meanings than those found by Saini J, to the effect that the claimant had told lies about a secret relationship he had with the Russian government and there were questions to be asked about the legitimacy of the source of political donations he had made. She contended that this was a statement on a matter of public interest, that she believed that it was in the public interest to say it, and that her belief was reasonable.

At the trial in January 2022 before Steyn J, DBE the main issues on liability were, in relation to each publication, (1) whether the claimant had shown that the serious harm requirement was satisfied and if so (2) whether the defendant had made out her public interest defence.

There was a subsidiary aspect to the second issue. The TED Talk and the Tweet had both remained accessible online from the time of first publication until the time of the trial. It was common ground that in such a case a public interest defence once established can expire if the circumstances change in such a way that it is no longer reasonable for the defendant to believe that publication is in the public interest. Nicklin J so held in Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB), [2022] EMLR 2 at [159], adopting the general approach of the common law to the Reynolds defence of responsible journalism (see Loutchansky v Times Newspapers Ltd [2001] EWCA Civ 1805, [2002] QB 783 at [79], Flood v Times Newspapers Ltd [2010] EWCA Civ 804, [2011] 1 WLR 153 at [77]-[78]). The judge agreed. She therefore proceeded on the basis that the defendant had to make out all the elements of the public interest defence with respect to the whole of the continuing publication, and that in making its assessment the court should "focus on whether there had been a significant change of circumstances."

The claimant argued that there had been five significant changes of circumstance. The first was a statement released on 24 September 2019 by the National Crime Agency ("the NCA Statement"). An article published by the defendant in 2017 had prompted official investigations by the Information Commissioner's Office ("ICO") and the Electoral Commission. On 1 November 2018 the Electoral Commission announced that it had unveiled evidence of criminal offending falling outside its remit and that it had handed that evidence to the NCA. The NCA investigated. The NCA Statement announced the results of that investigation. These were that the NCA had found no evidence that any criminal offences under the Political Parties, Elections and Referendums Act 2000 or company law had been committed by (among others) the claimant and had not received any evidence to suggest that the claimant and his companies "received funding from any third party … or that he acted as an agent on behalf of a third party." Another of the changes of circumstance relied on was a joint statement made by Electoral Commission and the claimant and others on 29 April 2020 ("the Joint Statement") in which the Electoral Commission publicly confirmed its acceptance of the NCA's findings.

The defendant had taken no steps to stop publication of the TED Talk or the Tweet or to attach any qualifying statement to either of them. At trial, she did not accept that any of the changes of circumstance relied on, including the NCA Statement and the Joint Statement, required her to do this or that they made it unreasonable for her to continue believing that publication was in the public interest. Alternatively, she argued that if there was a point in time at which what she said in the publications complained of was no longer covered by the defence of public interest under section 4(1), because it was unreasonable for her to continue believing that publication was in the public interest, then the claimant would need to prove that the serious harm requirement was satisfied in respect of any publications after that point in time.

The judgment

After hearing evidence and argument over five days the judge handed down judgment on 13 June 2022. The judgment had three main sections, and fifteen sub-sections, running to 416 paragraphs. The narrow scope of the issues before us however means that I can concentrate on relatively small portions of the judgment.

Section I of the judgment identified the parties and gave an outline of the issues, the history of the case, and the evidence. At [9] the judge addressed the fact that the defendant had "repeatedly labelled this claim a SLAPP suit, that is a strategic lawsuit against public participation, designed to silence and intimidate her." The judge said that label was "neither fair nor apt" as the claimant's "attempt to seek vindication through these proceedings was … legitimate."

Section II of the judgment dealt with the issue of serious harm. It began at paragraph [48] with a statement of the relevant legal principles. For the most part these were not in dispute. But there was "one contentious point" which arose for determination, that is the one I have identified above as the main issue on this appeal. The judge dealt with this issue at paragraphs [53]-[59].

As the judge recorded, the claimant argued that the question whether the test in section 1 of the 2013 Act is met falls for determination once and only once, from the date of the original publication and that serious harm should be assessed "by reference to the entire period of publication, even if the court has determined that the defendant has a defence to the libel claim in respect of the first part of that period." For the defendant it was argued that if the public interest defence applied for a specific period of time but ceased to apply later due to a significant change of circumstances "the court would have to revisit the question whether serious harm was established from the date of the significant change of circumstances". It would be illogical to take account of any harm caused by earlier lawful publication.

The judge concluded that the defendant must be right as a matter of logic, for three reasons:

(1) First, she said section 1 of the 2013 Act was intended to be a significant amendment to the law which raised the bar for bringing a libel claim, and "it would be counter to the purpose of the provision if a claimant could surmount the serious harm threshold by bringing into account evidence of harm caused by a lawful publication." In support of that point the judge referred to a passage in the judgment of Lord Sumption, speaking for a unanimous Supreme Court, in Lachaux v Independent Print Ltd [2019] UKSC 27, [2020] AC 612 ("Lachaux SC") at [16].

(2) Secondly, the judge said that when assessing damages, any harm to the claimant's reputation suffered as a consequence of a publication in respect of which the defendant establishes a defence falls to be disregarded; and there is no good reason to take a different approach when assessing whether the serious harm threshold is met. In support of that point the judge referred to paragraph [24] of Lachaux SC.

(3) Thirdly, the claimant's argument treated the word "publication" in section 1 as meaning the first publication, whereas at common law, each communication of a statement is a separate publication. There was nothing in the words of section 1 to support the claimant's approach.

The judge set out her decisions and reasons on the issue of serious harm between paragraphs [80] and [99]. She did so in three sections.

She dealt first with the TED Talk. She identified the meaning as one that accused the claimant of "serious, repeated dishonesty … about a secret relationship he had with a potentially hostile foreign power". She accepted that it was inherently probable in the circumstances that there had been substantial publication of the talk within this jurisdiction. She observed that the evidence that it had any impact on the claimant's reputation and prospects in the business sphere was "negligible"; but she was persuaded that "it can be inferred that a sizeable number of people who knew or would later come to know [the claimant] would have viewed the TED talk and believed what was said about him, lowering his reputation in their eyes."

The judge rejected the defendant's contention that in the eyes of most viewers the claimant would have had no or no meaningful general reputation to be harmed. She held that it was impermissible for the defendant to rely for this purpose on earlier publications by the defendant and others of the allegation that the claimant had lied about his contact with the Russian government. That was contrary to the principle affirmed by the Supreme Court in Lachaux SC at [24], that "damage to the claimant's reputation done by earlier publications of the same matter is legally irrelevant" to the question arising under section 1, as it is when assessing harm to reputation at common law (Dingle v Associated Newspapers Ltd [1964] AC 371 ("Dingle")). The judge also rejected a contention that investigations by the Electoral Commission and others, and media reporting, had given the claimant a general bad reputation. At [90] the judge held that the claimant had established that publication of the TED talk caused serious harm to his reputation, so that the onus fell on the defendant to show that she had a defence.

Turning to the Tweet, the judge observed at [91] that "most of the matters I have referred to above are the same" but there were "two crucial differences". The first (at [92]) was that "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 normal inference would be that "access to a Tweet will peak at or shortly after the time of first publication" and there was no reason to think otherwise in this case. The Tweet was "likely to be a long way down the defendant's timeline". Secondly, the judge said at [93] "as [counsel for claimant] has acknowledged, it may reasonably be inferred that the vast majority of the defendant's followers on Twitter 'are likely to be persons within her own echo chamber' and 'it's probably right that they wouldn't have thought very much of the claimant by that time.'" The judge also said at [93] that those within the jurisdiction to whom the Tweet was published were "likely to consist of people whose opinion of the claimant was of no consequence to him".

At [94], the judge said that she was not persuaded that she should infer from the gravity of the imputation and the extent of publication that the Tweet had caused or was likely to cause serious harm to the claimant's reputation. She dismissed the claim in respect of the Tweet on that basis.

In paragraphs [95]-[99] the judge addressed "Continuing publication of the TED Talk from 29 April 2020". She summarised her conclusions on the public interest defence, explaining that she had found that this was established in respect of publication of the TED Talk up to 29 April 2020 but not beyond; and that accordingly "the question whether the claimant has proved that the serious harm threshold is met in respect of the TED Talk falls to be reconsidered by reference to the period from 29 April 2020." It will be convenient to refer to this period, that is, from 29 April 2020, as Phase Two, although the judge did not use that term.

The judge then considered whether the claimant had established that his reputation suffered serious harm as a result of publication of the TED Talk in Phase Two. She said that the gravity of the imputation remained the same and there was the same lack of evidence that the claimant had been shunned or lost business opportunities. His case was "dependent on drawing an inference of serious harm from the combination of the gravity of the imputation and the extent of publication." Although she had been persuaded to draw that inference in relation to "the original publication of the TED Talk" she was not so persuaded in relation to Phase Two. She found therefore that the claimant had not established that this publication (i.e. the publication of the TED talk from 29 April 2020) "has caused (or is likely to cause) serious harm to his reputation" [the judge's emphasis].

The judge gave three main reasons for this conclusion. First, the extent of worldwide publication of the TED talk in Phase Two was "close to a tenth of the figure from 15 April 2019" and publication in this jurisdiction was likely to be "a similarly small fraction of the whole" as in the earlier phase. "The normal inference … would be that views of the TED Talk will have peaked at or shortly after the time of first publication…" Secondly, the fact that the talk was about the EU referendum, which had taken place nearly six years before the trial, increased the likelihood that the extent of publication would continue to diminish. Thirdly, it could also reasonably be inferred that most of those in this jurisdiction who had viewed the TED Talk during Phase Two were (like the defendant's followers on Twitter) "likely to be people supportive of her defence of this claim and 'within her own echo chamber' and likely to be "people whose opinion of the claimant was of no consequence to him."

Section III of the judgment dealt with the defence of public interest. After a detailed examination of the evidence the judge held that the TED Talk and the Tweet were both publications on a matter of public interest, and that the defendant had believed throughout that it was in the public interest to say what she had. The judge accepted that this was a reasonable belief when the defendant gave her TED Talk in April 2019 and that it remained a reasonable belief when she posted the Tweet in June of that year, and for a further ten months or so thereafter. At [399] she concluded that "the defendant had established that her belief that publishing the TED Talk was in the public interest was reasonable" and that "for the same reasons, if I had found that the serious harm threshold was met in relation to the Tweet, I would also have found that the defendant's belief that publishing the Tweet was in the public interest was reasonable."

In paragraphs [400]-[412] the judge explained the conclusions she had reached on change of circumstances. These were that in the light of the Joint Statement on 29 April 2020 "it was no longer reasonable to believe that it was in the public interest to assert that there were grounds to investigate whether the source of [the claimant's] donations was foreign funding, accepted in breach of the law" at least without any qualification referring to the NCA Statement and the Joint Statement.

However, as the judge explained at [413]-[414], her earlier conclusion that the claimant had failed to establish that the TED Talk had caused or was likely to cause serious harm to his reputation in Phase Two, or that serious harm had been caused by publication of the Tweet, meant that although the defendant had failed to establish the defence of public interest for the publications after the change of circumstances on 29 April 2020, no question of awarding damages arose.

The grounds of appeal

There are three grounds of appeal. Ground 1 is that the judge "was wrong to hold that the issue of whether or not a statement has caused or is likely to cause serious harm to a claimant's reputation needs to be determined again from the date on which the defendant's belief that it is in the public interest to publish the statement ceases to be reasonable (and hence the s 4 defence falls away)". Permission to appeal on this ground was granted by the judge herself. This gives rise to the first of the three issues I have already identified.

Ground 2 is that the judge "was wrong to hold that the appellant had not proved that the Tweet caused (or was likely to cause) serious harm to his reputation". Ground 3 is that she "was wrong to hold that the publication of the TED Talk since 29 April 2020 had not caused and was not likely to cause serious harm to the claimant's reputation; the Court ought to have held (assuming such a requirement is necessary) that it had been satisfied on the facts of this case." Permission to appeal on Grounds 2 and 3 was refused by the judge, but the claimant's renewed application was adjourned for hearing with the appeal on Ground 1 with the appeal to follow if permission was granted. I would grant permission to appeal on each of grounds 2 and 3 although, as will be clear from the Summary at the start of this judgment, I have found it more convenient to deal with the issues they raise in a different way and I have ultimately concluded that Ground 2 fails.

The first issue: the application of section 1 where the public interest defence falls away

For the claimant, Mr Benjamin Williams KC submits that the judge's conclusion and her reasons are all mistaken. His main points can be fairly summarised in this way.

(1) The judge's approach does not give proper effect to the language of section 1 of the 2013 Act. Section 1 creates a threshold test for determining whether "a statement" is "defamatory" by reference to the effect of "its publication". This threshold needs to be satisfied only once, and it was in this case. As the judge held, the claimant proved that the publication of the TED Talk caused serious harm. The claimant thereby satisfied that threshold test and established the wrong in question. Mr Williams submits that whether a defence is established is an entirely separate question which arises for consideration only at a later step in the analysis, once the basic ingredients of the tort have been established.

(2) The judge's interpretation of section 1 is also wrong in principle. It allows for different answers to what is a single question viz. whether "a statement" is defamatory. It is wrong to answer that question by considering different publications of "the same singular statement" and factoring in whether a defence is available in respect of those publications.

(3) The judge's interpretation of section 1 is also at odds with well-established principles governing the assessment of serious harm. A relevant factor is the scale of the publication. This must be considered as whole, and not by reference to each individual communication on each individual date, to each individual publishee. Here however, the judge considered publication in a "granular way" in separate parts.

(4) The judge's interpretation is incoherent, as it transforms the public interest defence available under section 4 of the 2013 Act into a part of the section 1 statutory threshold. This interpretation also leads to an incoherent result. The judge ultimately held that the statement complained of did not cause serious harm and was therefore not defamatory, when she had already concluded that the same statement did cause such harm and was defamatory.

(5) Such an approach cannot be justified either by the language of section 1 or by the underlying statutory purpose of that section. It would also be contrary to the Human Rights Act 1998 ("HRA") as it would lead to the Article 8 rights of claimants being "routinely and unfairly trumped by the Article 10 rights of publishers in respect of false statements for which there is no defence." This result can easily be avoided by applying section 3 of the HRA, which requires legislation to be read and given effect, so far as possible, in a way which is compatible with Convention rights.