In this two-part post, Emma Linch explores the judgment in Banks v Cadwalladr. Part 1 focuses on the early determination on meaning in this case, whilst Part 2 discusses the impact meaning and intention had on the defences open to the defendant, specifically the public interest defence.
It is a truism in English libel law that the intention of the publisher is irrelevant when it comes to deducing the ‘meaning’ of an alleged defamatory statement. Despite this, failure to exercise editorial judgment (or more precisely, to contemporaneously record such thought processes), may well be fatal to a publisher’s reliance on a public interest defence.
On 13 June 2022 Mrs Justice Steyn DBE handed down a 117-page judgment ( EWHC 1417 (QB)) in Arron Banks’ libel action against the journalist, Carole Cadwalladr over a Tweet she posted and a TED Talk she gave about Mr Banks’ links to the Russian government and the source of generous donations he made to the Brexit campaign, Leave.EU.
This judgment has reinforced the strength of the public interest defence in protecting investigative journalism. However, those reading the judgment may be struck by the focus on the journalist’s state of mind in relation to the test under section 4 of the Defamation Act 2013, in particular whether the journalist’s belief that that subject matter was in the public interest was a reasonable one, even when this belief may be in conflict with the ‘meaning’ of the publications. In other words, a journalist’s intended meaning when publishing content, may be the point of reference in determining whether there is a public interest defence, so long as a journalist can show that they believed that publishing the statement complained of was in the public interest (a subjective test), and such a belief was ‘reasonable’ (an objective test).
The ‘Single Meaning’ Rule
The ‘single meaning’ rule in defamation can be described as an art of legal fiction. Perhaps perversely, with the near total abolition of jury trials in defamation cases, lawyers (whether this be the parties’ representatives or the judge) must assume the role of the hypothetical ‘ordinary reasonable reader’ who is “not naÏve”, “unduly suspicious” or “avid for scandal” (Jeynes v News Magazines Ltd  EWCA Civ 130 per Sir Anthony Clarke MR at ). The approach to determining meaning, was expanded by Nicklin J in Koutsogiannis v Random House Group Ltd  EWHC 48 (QB);  4 W.L.R. 25 at , later endorsed by the Court of Appeal in Millett v Corbyn  EWCA Civ 567;  E.M.L.R. 19 at .
Putting their legal involvement or expertise aside, lawyers must come up with the ‘meaning’ of the publication(s) complained of. Unsurprisingly, this is a challenging exercise; even a 5-word tweet can have many different interpretations and meanings; this exercise becomes even more difficult and strained when considering defamatory statements made in long articles, books or broadcasts. Whatever the medium, the ‘meaning’ must be taken from the publication as a whole, taking into account relevant context, rather than cherry-picked statements in isolation. Today’s fast-pace and clickbait-style media is yet another factor to consider in arriving at a ‘meaning’.
Often (and naturally, given the adversarial system in England & Wales) the claimant’s meaning will be pitched higher, and therefore more defamatory than the meaning advanced by the defendant. If this is the case, the parties will seek an early determination on meaning at a trial of preliminary issues, which has been an approach heavily endorsed by Mr Justice Nicklin, the Judge in Charge of the Media & Communications List. It is now common for a Defence to only be prepared once there has been a court ruling on meaning, thereby avoiding wasted costs seeking to defend a meaning that cannot be sustained in light of the court’s assessment. It is also possible the judge deems the meaning not defamatory, thereby curtailing the litigation at an early stage.
Another scenario, which illustrates the widely diverging results from this exercise, is this: the judge arrives at a single meaning which is one that has not been advanced by either the claimant or the defendant. It is commonplace for a judge to form his or her preliminary view of the meaning prior to reading or hearing submissions from the parties in order to protect the fiction of role-playing the ‘ordinary, reasonable reader’ without this view being tainted by legal arguments. This is what happened in Banks v Cadwalladr, however the single meaning determined by the judge, whilst initially unhelpful for Ms Cadwalladr, was ultimately not fatal to her public interest defence.
Early Determinations on Meaning
On 12 December 2019, Saini J handed down his judgment following the trial of preliminary issues as to meaning in respect of the four publications Mr Banks originally complained of. He later only progressed his complaints regarding the TED Talk and the Tweet at trial.
In the opening remarks, Saini J commented on the over-elaborate and lawyerly approach adopted by the respective parties which involved directing the judge to go back and forth between different passages from the at-issue publications (in particular transcripts from talks Ms Cadwalladr gave relating to Mr Banks). The judge compared the legal argument to what one would expect when arguing “about the construction of a deed concerning the demise of a leasehold interest” rather than takeaway meaning by an ordinary reader or viewer. He went on to say at paragraphs 8-12:
“The arguments on both sides involved on occasion going back and forth between different passages in the text version, and reflecting on what the speaker was referring to later by reference to a passage earlier in the text. To take just one example, when Ms. Cadwalladr referred in the Convention Speech to the Russian Government having offered money to Mr. Banks (see Annexe B, para. 14) one of the arguments before me involved going back a few pages in the text to reflect on whether this was really just about the “gold and diamond deals” (see Annexe B, para. 8) which Mr. Banks is said to have been offered in the Russian embassy. A viewer would not do that. They would simply watch the Ted Talk in one go and not, as a lawyer would do, think as follows: when Ms. Cadwalladr refers to Russian offers of money was she referring to gold and diamonds which I can identify by looking back? Are they the same thing as money or was this something else?
The ordinary reasonable viewer of the Ted Talk and the Convention Speech does not have a text before her. She will watch it as an uninterrupted broadcast and is most unlikely to rewind back to an earlier part and slowly examine the language (as if she had the text before her) and then go back to where she stopped earlier and reflect on what the meaning was.
One can readily understand why in disputes as to meaning of language this happens. Lawyers (and I include judges in that category) cannot resist turning any exercise where language is being considered into an exercise in construction of words. That problem is particularly acute when a speech (given and intended to be viewed and heard, and not read) is turned into a text document.
This process diverts one from what should be a simple task in most cases and calls into question whether our normal adversarial processes (pleading, skeleton arguments and oral argument) are the appropriate way in which to resolve disputes as to meaning. The task of the court is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable viewer of the videos (or reader of the tweets) would understand the words bear. The court is to undertake that task without over-elaborate analysis and without adopting too literal an approach to this task. Textual analysis is the exact opposite.
As I told the parties at the hearing, I approached this task by viewing and reading the relevant publications without considering the pleaded case and skeleton arguments. My mind being unpolluted by such materials, I formed a preliminary view as to the meanings. Although I have found the submissions of substantial assistance as a cross-check on that initial view, I was not ultimately persuaded that the meanings forcefully advanced by either party were wholly correct. There were however important parts of each of their cases which reflected or were similar to my own original conclusions.”
Similar criticisms have been made in other cases in which the irresistible urge for lawyers (including judges) to enter into an unduly complex and over-engineered analysis of the meaning of words has undermined the ‘ordinary reasonable reader’ test.
A good example of this is Stocker v Stocker  UKSC 17;  EWCA Civ 170;  EWHC 474 (QB) in which the meaning of five words “he tried to strangle me” went all the way on appeal to the Supreme Court. At first instance, the High Court made reference to the Oxford English Dictionary definition of “to strangle” deeming that it either meant (i) an act of killing by strangulation, or (ii) painful constriction of the neck; however preceding this with “tried to” led the judge to deem that Ms Stocker’s use of “strangle” was the former, and was therefore defamatory. This meaning was upheld by the Court of Appeal but later unanimously overturned on appeal by the Supreme Court. The Supreme Court was critical of the lower courts’ reliance on a dictionary definition, which it viewed as dangerous as it was devoid of context. The words were the subject of a Facebook post, and the hypothetical reader had to view it in this medium, including the scroll-like, impressionistic and fleeting nature of such posts, in which people “do not pause and reflect”  (this approach has been followed in other social media libel cases e.g. Monroe v Hopkins  EWHC 433 (QB);  4 W.L.R. 68 and Vardy v Rooney  EWHC 3156 (QB)).
Eventually, “he tried to strangle me” was deemed by the Supreme Court to mean that “Mr Stocker had grasped his wife by the throat and applied force to her neck, rather than that he had deliberately tried to kill her”, not least as Ms Stocker was still alive (and was now being sued by her ex-husband).
In Banks v Cadwalladr the meaning of the two publications taken to trial were as follows:
1. The Tweet published on 24 June 2019 (the “Tweet”)
Publication complained of (with words complained of underlined):
“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.”
Meaning advanced by Mr Banks: “that the Claimant has lied about the nature and/or extent of his relationship with the Russian Government”.
Meaning advanced by Ms Cadwalldr: “that (a) there are reasonable grounds to suspect that Mr. Banks has lied about having a secret relationship with the Russian government and (b) there are grounds to investigate whether that relationship involved acceptance of foreign funding in breach of the law on funding referendum campaigns”.
2. The TED Talk published on 15 April 2019 named “Facebook’s role in Brexit – and the threat to democracy” (the “TED Talk”)
Statement complained of: “And I am not even going to get into the lies that Arron Banks has told about his covert relationship with the Russian Government.”
Meaning advanced by Mr Banks: “that the Claimant has repeatedly lied about the nature and/or extent of his relationship with the Russian Government”
Mr Banks’ alternative (and modified) meaning if (contrary to his primary case) the Court decides that the “lies” require more by way of context is: “that the Claimant has repeatedly lied about the nature and/or extent of his relationship with the Russian Government in relation to whether that relationship involved acceptance of Russian funding in breach of the law on funding referendum campaigns”. This meaning was only advanced after the trial of preliminary issue as to meaning, but before the ruling on meaning by Saini J.
Meaning advanced by Ms Cadwalldr: “that (a) there are reasonable grounds to suspect that Mr Banks has lied about having a secret relationship with the Russian government and (b) there are grounds to investigate whether that relationship involved acceptance of foreign funding in breach of the law on funding referendum campaigns”.
Single meaning for both the Tweet and TED talk determined by Saini J:
“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 is common in early determinations on meaning, the divergence between parties’ respective position hinged on the where they placed the allegations on the ‘Chase’ levels – in particular whether Ms Cadwalladr’s statements amounted to either:
- an allegation that there are reasonable grounds to suspect or grounds to investigate ‘Chase Levels 2 and 3 respectively’ (as Ms Cadwalladr contended);
- or an allegation that Mr Banks was guilty of the claims advanced by Ms Cadwalladr ‘Chase Level 1’ (as he argued)
In arriving at the meaning, Saini J gave important consideration to the context in which the allegations were made, especially with regards to the TED Talk as a whole, which was not solely about Mr Banks’ relationship with the Russian government, but was specifically about the issue of alleged improper foreign funding of electoral campaigns. This aspect of the meaning was missing from the case advanced by Mr Banks, but had been included by Ms Cadwalladr (although not pitched as an allegation of guilt). Due to the overlap between the Tweet and TED Talk (a link to the former being embedded by Ms Cadwalladr in the Tweet itself), the judge attributed the same meaning to both.
Part 2 will discuss the effect meaning and intention had on Ms Cadwalladr’s defences, specifically the reliance (and ultimate success) on the public interest defence.
Emma Linch, Senior Associate at Simons Muirhead Burton LLP