Serious Harm Hurdles – Banks v Cadwalladr Appeal

3rd March 2023

The Court of Appeal may have achieved a PB for their quick turnaround of the appeal in Banks v Cadwalladr, which was speedily handed down on 28 February 2023, 3 weeks after the hearing of the appeal.

The Brexit-supporting businessman Arron Banks partially succeeded in his appeal regarding allegations made by journalist Carole Cadwalladr. The claim concerns allegations made in a Tweet and TED Talk which (falsely) suggested that Mr Banks had secretly broken electoral law by taking money from a foreign power and had lied about the matter.

Arguably, the most legally important ground of appeal was the interpretation of the serious harm threshold introduced under section 1(1) of the Defamation Act 2013, which Mr Banks lost.  The trial judge at the High Court (Mrs Justice Steyn) considered whether serious harm had been caused to Mr Banks by the publication of the TED Talk in two phases, in effect creating a double hurdle for Mr Banks. This was because, despite the initial publication of the TED Talk in April 2019, on 20 April 2020 a “significant change in circumstances” occurred which meant that Carole Cadwalladr’s only defence, that of public interest, fell away. The first phase of publication (April 2019 – April 2020) was deemed to have caused serious harm but was lawful as the publication was covered by the public interest defence; publication during the second phase (from April 2020 onwards), when this defence could no longer be relied upon, was not deemed by Steyn J to have caused serious harm to Mr Banks’ reputation.

The Court of Appeal agreed with the trial judge’s assessment. The effect of the hurdle at 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; a publication that does not cause serious harm and is not likely to do so is not actionable. The hurdle for defamation is linked to harm, rather than the words used.

The trial judge was therefore correct to say that Mr Banks would have to prove the publication of the TED Talk in Phase Two had caused or was likely to cause serious harm to his reputation. He could not (purely) rely on the fact that he had successfully surmounted the serious harm hurdle in Phase One. The threshold is not just satisfied once; it falls to be assessed again at the point at which a public interest defence falls away, in order to see whether the impact of publication after that point (in the absence of a defence) has caused or is likely to cause serious harm to the claimant’s reputation. This is in line with the intention of Parliament when introducing the Defamation Act 2013: the onus is on the claimant to prove actual reputational harm, which is related to publication. If claimants were permitted to rely on earlier harm, which was not actionable (e.g. due to limitation), or lawful (as it was covered by a defence), it would create an unfair and incoherent system. As Steyn J succinctly put in in the trial judgment: “It would run counter to the purpose of the [section 1] provision if a claimant could surmount the serious harm threshold by bringing into account evidence of harm caused by a lawful publication in respect of which the defendant has established a defence.” [57]

The fact that Mr Banks had established serious harm during Phase One, did not mean a home run once Ms Cadwalladr’s defence fell away. In the end, although Mr Banks did not win on this ground of appeal, the Court of Appeal found that Steyn J had not assessed serious harm factors properly in Phase Two and awarded Mr Banks damages for this period of the publication.

The case brings (some) clarity to the serious harm hurdle and its interplay with the public interest defence under s.4 Defamation Act 2013. It should make both claimants and defendants cautious that, even though serious harm and public interest hurdles have been surmounted, that may not always be the case during the lifetime of the publication.