Cadwalladr case highlights funding issues over defamation defence

David Barker and Lottie Peach of Pinsent Masons said there are legal, moral and insurance issues for publishers to consider when determining whether to stand behind freelance contributors whose comments on other platforms spur defamation claims.

Barker and Peach were commenting after freelance journalist Carole Cadwalladr successfully defended defamation claims raised by Brexit campaigner Arron Banks over comments she had made about Banks in a ‘TED Talk’ presentation in 2019, the video of which was subsequently posted on www.ted.com, and in a later tweet she posted, about his relationship with Russia.

Prior to trial, a judge had determined that there was a single meaning to Cadwalladr’s comments for the purposes of defamation law and that this was that Banks had “on more than one occasion … 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”.

While Cadwalladr’s comments were made in a personal capacity, they reflected subject matter she had reported on more broadly as a freelance contributor in the Guardian and Observer newspapers.

Under the Defamation Act 2013, claimants must demonstrate that the publication of a statement has caused or is likely to cause serious harm to their reputation in order to bring a claim for defamation against the publisher of the statement.

According to Mrs Justice Steyn who was considering Banks’ claims against Cadwalladr, Banks was able to show that publication of the TED Talk has caused and/or is likely to cause serious harm to his reputation. However, she dismissed the claims he made in relation to Cadwalladr’s tweet after finding that Banks had failed to prove that the ‘serious harm’ threshold had been met.

In challenging the claims made in relation to the TED Talk comments, Cadwalladr raised a public interest defence. Section 4 of the Defamation Act 2013 provides publishers with a defence against defamation claims where the statement complained of was, or formed part of, a statement on a matter of public interest; and the person accused of defamation reasonably believed that publishing the statement complained of was in the public interest.

Mrs Justice Steyn considered Cadwalladr’s public interest defence in respect of the availability of the TED Talk video in two distinct time periods.

The initial period was from the point of publication on 15 April 2019 up until 29 April 2020, when the judge ruled that there was a significant change of circumstances that justified a re-evaluation of the merits of the defence in respect of the video’s continued publication.

In respect of the initial period of publication, Mrs Justice Steyn held that Cadwalladr had demonstrated that she believed that what she had published was in the public interest and that her belief was reasonable having regard to all the circumstances of the case. During this period Banks was subject to investigation by the Electoral Commission in relation to his compliance with political campaign funding laws, and at the time of publication of the TED Talk Banks was the subject of investigation by the National Crime Agency (NCA) after the Electoral Commission had shared the evidence it had gathered with the NCA.

However, on 29 April 2020, the Electoral Commission and Banks issued a joint statement that said that the Electoral Commission had accepted the conclusions of the NCA’s investigation, which found no breach of political campaign funding or company laws on Banks’ part, and that the Commission also accepted that the NCA had not received any evidence to suggest that Banks or his companies had been a conduit for third party funding.

Mrs Justice Steyn said that in light of that significant change of circumstance, continued publication of the TED Talk could not be justified in the public interest. However, she said that Banks had failed to show that continued publication of the video had or was likely to cause serious harm to his reputation, meaning his claim for defamation in relation to continued publication of the TED Talk comments failed.

David Barker of Pinsent Masons said: “A notable feature of this case was that the defamation claims were brought against Cadwalladr in her personal capacity. Cadwalladr turned to social media to raise awareness of the case brought against her and attracted crowdfunding towards the cost of her legal defence from approximately 29,000 people.”

“Traditional publishers are set up for managing legal risk, such as around defamation, misuse of private information or compliance with data protection law, with editors and legal teams able to balance risk involved in publishing stories about individuals or businesses involved in alleged wrongdoing. Publishers may have insurance to cover the cost of any liability they have for damages when they publish such stories and are later subject to successful legal proceedings brought against them,” he said.

“However, it is increasingly common for journalists and other commentators to expand on the issues they report on social media and via other platforms. The protections that apply within traditional media may not be available in the context of comments made in these other channels, raising questions around how funding for a legal defence can and should be provided for in the event those comments – which may not always align with a publisher’s editorial agenda – spur legal claims,” he said.

Lottie Peach, also of Pinsent Masons, said: “Cadwalladr was able to establish a public interest defence in relation to the TED Talk due, in the main, to her reasonable belief that her intended meaning that Banks had lied on more than one occasion about a secret relationship he had with the Russian government was in the public interest and this has continued to be her belief at all times since she gave the presentation. This belief was supported by the fact that the Electoral Commission had in November 2018 published a report following its investigation stating that it had reasonable grounds to suspect that Banks was not the true source of loans made to Better for the Country/Leave.EU campaign.”

“There was a ‘significant change of circumstance’ following the conclusion of the NCA’s investigation and from the point of the joint statement issued by the Electoral Commission and Banks which meant that the public interest defence fell away, but Banks failed to prove that the continuing publication of the TED Talk from 29 April 2020 onwards has caused serious harm to his reputation,” she said.

“The judge in her ruling confirmed that the public interest defence is not determined by reference to the single meaning that had attributed to Cadwalladr’s comments pre-trial, but by reference to a range of meanings, but that no change of circumstances has the effect of changing the meaning she intended to convey. Being able to prove/evidence that she intended to convey a particular meaning at the time the TED Talk was published and that she had been a responsible journalist, who believed the publication was in the public interest as it highlighted the vulnerabilities of our democracy, was the basis of her successful public interest defence,” Peach said.

“A significant part of the judgment involves the judge scrutinising the steps Cadwalladr took as a responsible journalist and the facts that contributed to her reasonable belief. This illustrates that establishing a public interest defence will not be straightforward and the judge will carefully consider all the circumstances involved,” she said.