This is Part 2 of a post discussing the judgment in Banks v Cadwalladr. This final part deals with the impact meaning and intention had on the defences open to the defendant, specifically the public interest defence. Part 1 can be found here.

Meaning – Effect on Carole Cadwalladr’s Defences

Truth

Given Saini J’s ruling on meaning, and the disparity between the meaning advanced (and intended) by Ms Cadwalladr, she was forced to admit that that the single meaning was not true, to drop her truth defence, and solely defend the case on public interest grounds.

In her oral evidence, Ms Cadwalladr explained that she had taken care not to mention or suggest that Mr Banks had taken Russian money to fund the Brexit campaign, as she had seen no evidence to suggest that this was the case [41] – [42]. However, Ms Cadwalladr recognised that she could not defend allegations of guilt (particularly regarding the allegation that Mr Banks had received illegal foreign funding) as true or substantially true.

Public Interest 

The only available defence open to Ms Cadwalladr was the public interest defence under section 4 Defamation Act 2013. Ms Cadwalladr also only had to satisfy this test in respect of the TED Talk as Mrs Justice Steyn determined that the Tweet had not passed the threshold set out at section 1(1) Defamation Act 2013, as its publication and dissemination had not caused and was not likely to cause serious harm to Mr Bank’s reputation [94].

Whilst the judge was satisfied that the serious harm threshold was met in respect of the TED Talk, the timeline for this test (and therefore also Ms Cadwalladr’s public interest defence) was split into two parts, effectively meaning that both section 1 (serious harm) and section 4 (public interest defence) had to be reset and re-tested due to a ‘significant change in circumstances’ on 29 April 2020 since the original publication. This was the result of a ‘Joint Statement’ made by the Electoral Commission and Mr Banks (and others) in which it accepted the conclusions previously made by the National Crime Agency (NCA) and found no evidence that any criminal offence had been committed by Mr Banks and had seen no evidence to suggest that Mr Banks or his companies received funding from any third party to fund the loans to the Leave.EU campaign.

As explained in more detail below, the fact that Ms Cadwalladr did not remove or amend the TED Talk following the joint statement (29 April 2020) would have been fatal to her public interest defence from the date on which this statement was published [407-408]. However, as the judge determined that the serious harm threshold was not met from 29 April 2020, and Ms Cadwalladr was able to satisfy the test for public interest defence for the preceding period, she ultimately succeeded in defending the claim.

The Public Interest Defence – Importance of State of Mind

Whilst a determined single meaning may be relevant to the defendant’s (continued) reasonable belief that publishing a statement is in the public interest, “[t]he public interest defence is not determined by reference to the single meaning, but by reference to a range of meanings”. [409]

The objectively determined single meaning arrived at by Saini J at the trial of preliminary issue, was not the sole factor or point of reference when considering Ms Cadwalladr’s public interest defence.

Under section 4 of the Defamation Act 2013, various conditions must be met for a journalist or publisher to avail themselves of the defence. These can be distilled into three questions, all of which must be answered affirmatively [104]:

(i) Was the statement complained of on a matter of public interest, or did it form part of such a statement? 

ii) If so, did the defendant believe that publishing the statement complained of was in the public interest?

iii) If so, was that belief reasonable?

The focus of section 4 is on the ‘statement complained of’, not the ‘single meaning’.  This is because the defence is designed to protect a journalist’s ‘reasonable belief’ that they are publishing something in the public interest, recognising that the statement may carry a whole host of possible meanings, ranging from non-defamatory to defamatory.  In other words, if a journalist genuinely did intend to convey a different meaning (a non or less defamatory one), there should be a degree of leniency provided that other elements of the public interest defence are satisfied.

This rationale is referred to as the ‘Bonnick Principle’ following the 2002 Privy Council decision in Bonnick v Morris  [2003] 1 AC 300.  In the Banks v Cadwalladr judgment, Steyn  J commented: 

“In Bonnick the Privy Council made clear that, given language is inherently imprecise, a journalist should not be penalised for making a wrong decision on a question of meaning on which different people might reasonably take different views. A defamatory meaning should not be ignored by a journalist if it is “obviously one possible meaning” ([25]) or “glaringly obvious” ([27]); to do so would not be reasonable. But if that threshold is not reached, the reasonable belief of a journalist who did not perceive the more damaging meaning falls to be assessed by reference to the less damaging meaning.”  [123]

The divergence between Ms Cadwalladr’s view on what the words meant, and what Saini J ruled the words meant is highlighted in a recent Guardian article following her favourable trial judgment, in which Ms Cadwalladr said: 

“I thought the meaning of these words was blindingly obvious. That he’d told lies about his covert relationship with the Russian government! I was wrong. In November 2019, as part of the hearing to determine the “legal” meaning of the words I had used, Mr Justice Saini came up with his formulation, not the one I thought the words had meant; not even the one Banks had advanced. He contended that I’d said he’d had “a secret relationship with the Russian government in relation to acceptance of foreign funding of electoral campaigns in breach of the law”.

It felt like I’d stepped into the pages of a Kafka novel. The judge’s ruling meant that I was going to be put on trial to defend the truth of a statement I’d never actually said or meant.”

In her judgment, Steyn J went through the different parts of the public interest test in great detail, devoting the most time (and 256 paragraphs, spanning nearly 80 pages) to whether Ms Cadwalladr had a “reasonable belief” that the statements complained of in the TED Talk were in the public interest.  The judge did this with incredibly detailed reference to the chronology of Ms Cadwalladr’s investigations into these matters – each relevant document, allegation, and fact she came across preceding her TED Talk on 15 April 2019, from 2016 onwards. At each development, the evolution of Ms Cadwalladr’s belief, specifically regarding Mr Banks’ connections with Russian officials, and potential interference with the Brexit campaign was considered.

This exercise was carried out with extensive cross-referencing of contemporaneous documents, including emails, Ms Cadwalladr’s investigations and research, other stories she wrote during that period for The Observer and The Guardian, notes and recordings of interviews and meeting, statements made by Mr Banks, published statement by public bodies, all of which was supplemented by Ms Cadwalladr’s written and oral evidence. The end result was a comprehensive and forensic enquiry, detailing each event which had a bearing on Ms Cadwalladr’s state of mind, and ultimately the reasonable belief in the public interest value of the words uttered in the TED Talk. These were not off the cuff remarks, but the culmination of years of thorough investigations – even the TED Talk script went through ten drafts, and was reviewed by various people, including fact checkers, before it was presented.

Steyn J agreed that Ms Cadwalladr intended to convey the following meanings:

“(i) the claimant lied on more than one occasion about a secret relationship he had with the Russian government; and 

(ii) there are 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.”  [376]

Looking back at the meaning advanced at the trial of preliminary issue before Saini J, the intended meaning arrived at by Steyn J is actually a mixture of the meanings advanced by each of the parties – part (i) of the above was advanced by Mr Banks (an imputation of guilt regarding lying about the relationship – Chase Level 1), and part (ii) is largely similar to the second part of the meaning advanced by Ms Cadwalladr at the earlier hearing (grounds to investigate illegality regarding the source of funds – Chase Level 3). As can be demonstrated below, even Mr Banks’ (or rather, his lawyers) did not (initially) believe that an ordinary viewer of the TED Talk would take it to mean that Mr Banks had potentially lied about accepting Russian funding in breach of electoral law. Mr Banks only introduced this element of the meaning after the hearing, but before the judgment given by Saini J [16][80].

In the concluding remarks, Steyn J stated that

“Ms Cadwalladr genuinely did not appreciate” that the words she spoke could carry the single meaning found by Saini J  The TED Talk was, of course, drafted over a lengthy period of time, and so Ms Cadwalladr had time to consider the imputation of her words. But in this regard, I bear in mind: 

i) When the claimant’s solicitors wrote a letter of claim on 24 June 2019, more than two months after the TED Talk was given, they asserted that the meaning of the words complained of was: “Mr Banks has lied about the nature and/or extent of his relationship with the Russian Government”; 

ii) The claimant’s pleaded case prior to the meaning trial was that the words complained of mean: “that the Claimant has repeatedly lied about the nature and/or extent of his relationship with the Russian Government”; 

iii) It was only after the hearing of the preliminary issue as to meaning that the claimant pleaded an alternative formulation: “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”.  [380]

Although the intended meaning was less damaging than the single meaning, it was still a serious allegation. However, having regard to all the circumstances of the case, it was held that Ms Cadwalladr’s belief in the public interest in the statement complained of was reasonable, and her defence succeeded.  

However, this reasonable belief was later undermined by a significant change in circumstance – a “Joint Statement” made by the Electoral Commission and Mr Banks (and others) which accepted the NCA’s prior conclusions, and found no evidence of criminal offences, or receipt of funding from third parties relating to the donations to the Brexit campaign.  

Steyn J made clear that :

“Once the Joint Statement was made, in my view, 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 Mr Banks’s donations was foreign funding, accepted in breach of the law on the funding of electoral campaigns, at least, without any qualification referring to the NCA’s statement and the Joint Statement.” [407] 

In light of this statement, Ms Cadwalladr could no longer maintain her reasonable belief arguments in continued publication, without amendment or qualification to reflect the findings by the Electoral Commission and the NCA, both concluding that there was no evidence of wrongdoing.  Had Steyn J found that publication of the TED Talk had caused serious harm to Mr Banks’ reputation after the release of the Joint Statement, he would have partially succeeded on this element of his claim. 

Comment

Ultimately, Ms Cadwalladr was able to defend the publication on the basis of the meaning she intended to convey in the TED Talk, and not the single meaning determined at the preliminary hearing.  This was crucial to her success in this case, and her ability to defend the publication on public interest grounds, but it could not be sustained following the release of the Joint Statement.

However, the length and detail of this judgment alone demonstrates the level of detail required to succeed in a public interest defence. The defence is one which may consistently evolve right up to, and potentially following publication, and demands a forensic analysis of the state of mind of the journalist or publisher in order to satisfy the conditions, especially whether there was a reasonable belief that publication of the words complained of was in the public interest. 

On a practical level this case underscores the need for journalists and publishers to keep a detailed paper trail of documents, which should be supplemented with notes and memos recording the developments in the public interest angles, and how such developments affect their ongoing views regarding the public interest in the story or information intended for publication. As arduous as it may seem, journalists are expected to consistently ask and answer (preferably in written form) whether the intended publication is and continues to be in the public interest.  This is especially the case where there is a material change in circumstances, which can occur post-publication. It is clearly wholly unsatisfactory (and somewhat impossible) to cast one’s mind back to what one was thinking at a certain moment in time, often several years later, especially during a long and complex investigation, or as a news story is breaking at speed in the newsroom. Memories fade, but the value attributed to contemporaneous documents does not; there can be no better substitute than contemporaneous records of ‘reasonable belief’. It was also crucial to evidencing Ms Cadwalladr’s intended meaning in respect of the TED Talk, failing which, she may have had to apply section 4 to a more serious meaning. 

The public interest defence is an important safety net to project good quality public interest journalism, even when facts may not ultimately be 100% accurate, or when a single meaning may not be what the journalist intended to convey. However, Banks v Cadwalladr confirms that this defence is not awarded lightly.

Emma Linch, Senior Associate at Simons Muirhead Burton LLP