The decision by a high court judge to dismiss a libel claim brought against the Observer and Guardian journalist Carole Cadwalladr by the multimillionaire Brexit backer Arron Banks is a timely shot in the arm for public interest journalism.
Concerns have long been mounting that the legal landscape in England and Wales places excessive restrictions on reporting, with London – where the high court is situated – often described as the libel capital of the world.
Fighting a case all the way to trial can involve oppressive costs, much worse if you are the losing party, but potentially significant even if you win since not all of the costs are reimbursed in the latter case. In this case, if Cadwalladr had lost, she faced being liable for Banks’s costs, estimated at between £750,000 and £1m, together with any resulting damages.
The claimant-friendly environment has been highlighted this year in the context of Russia’s invasion of Ukraine with the focus on Slapps – strategic lawsuits against public participation – where the wealthy (in Russia’s case, oligarchs) exploit lengthy and expensive legal procedures to silence journalists and others.
A recent report by the Coalition Against Slapps in Europe found more Slapps were brought in the UK than anywhere else in Europe between 2010 and 2021.
While defamation laws have long been a source of angst to editors, reporters and publishers, developments in other areas have made their jobs even tougher.
In February, in a landmark privacy case, the supreme court ruled against Bloomberg News in a decision that made it harder for media outlets to publish information about individuals subject to criminal investigations.
The UK’s highest court ruled that an article by Bloomberg naming a US business executive at a large public company who was facing a criminal inquiry by a British regulator constituted misuse of his personal information as he had not been arrested or charged with any offence in relation to the corruption inquiry.
The court ruled that the right to privacy of the businessman – known in the legal proceedings as ZXC – trumped Bloomberg’s right to freedom of expression.
It reinforced the high court’s decision to award Cliff Richard substantial damages in 2018, after the BBC revealed he was the subject of a police investigation into alleged historical sexual offences (later dismissed as false), in a case that first changed the way the media could report on police investigations where no charges had been brought.
If Banks had won, it would have been another blow to news organisations across the country.
The decision has caused confusion in some quarters given that Cadwalladr’s words, as interpreted by the judge, were untrue.
But, crucially, section 4 of the Defamation Act 2013 is designed precisely to allow for inaccuracies when investigating matters of great import.
It states: “It 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.”
The judge, Mrs Justice Steyn, said that this “reflects the appreciation that a journalist is not required to guarantee the accuracy of her facts”.
It was not disputed that the publications complained of by Banks were on matters of public interest – Cadwalladr’s barrister, Gavin Millar QC, said her journalism “raised issues going to the heart of the integrity of British democracy”. Steyn said the journalist had reasonable grounds for her belief, particularly given that, at the time it was expressed, the Electoral Commission and National Crime Agency were investigating Banks’s donations to Leave.EU.
For her efforts, Cadwalladr suffered abuse, much of it misogynistic in nature, including, Millar told the court, from Banks: “The claimant frequently attacked the defendant on social media, subjecting her to misogynistic threats/abuse including tweeting (a) a video which appeared to condone violence against her and (b) suggesting that in Russia she would not be so ‘lippy’, ie, would not engage in her investigative journalism if she were in Russia.”
The video was later deleted and, in court, Banks said it was an attempt at humour. He faced accusations from free speech and press freedom campaigners, as well as Cadwalladr herself, that the case brought against her was a Slapp, particularly in light of his wealth and the fact that he sued her personally, rather than the Ted organisation, which provided the platform for her comments.
Steyn rejected this characterisation, saying: “In circumstances where Ms Cadwalladr has no defence of truth, and her defence of public interest has succeeded only in part, it is neither fair nor apt to describe this as a Slapp suit.”
Nevertheless, in finding that Cadwalladr was able to rely on section 4 of the Defamation Act, Steyn not only put an end – subject to appeal – to three years of uncertainty for the defendant, but provided a boost to a media industry which, when it comes to court cases, has had little to cheer about in recent times.
