A High Court judge’s decision to dismiss a libel claim brought against Observer and Guardian journalist Carole Cadwalladr by multimillion Brexit backer Arron Banks is a timely blow to public interest journalism .
Concerns have long been growing that the legal landscape in England and Wales imposes excessive restrictions on reporting, with London – where the High Court is located – often described as the libel capital of the world.
Fighting a case to trial can lead to oppressive costs, much worse if you are the losing party, but potentially significant even if you win since not all costs are reimbursed in the latter case. In this case, if Cadwalladr lost, it risked being liable for Banks’ costs, estimated at between £750,000 and £1million, and resulting damages.
The plaintiff-friendly environment was highlighted this year in the context of Russia’s invasion of Ukraine, with a focus on Slapps – strategic lawsuits against public participation – where the wealthy ( in the case of Russia, the oligarchs) exploit lengthy and costly legal proceedings to silence journalists and others.
A recent report of the Coalition Against Slaps in Europe found that more Slapps were imported into the UK than anywhere else in Europe between 2010 and 2021.
While defamation laws have long been a source of anxiety for editors, journalists and publishers, developments in other areas have made their job even more difficult.
In February, in a landmark privacy case, the Supreme Court ruled against Bloomberg News in a decision that made it harder for the media to publish information about people under criminal investigation.
The UK’s highest court has ruled that a Bloomberg article naming an American business executive at a major public company who was the subject of a criminal investigation by a UK regulator constituted a misuse of his personal information as he had not been arrested or charged with any offense in connection with the corruption investigation.
The court ruled that the privacy rights of the businessman – known in court proceedings as ZXC – outweighed Bloomberg’s right to free speech.
This bolstered the High Court’s decision to award Cliff Richard substantial damages in 2018, after the BBC revealed he was under police investigation into alleged historical sex offenses (later dismissed as false), in a case that initially changed the way the media could report on police investigations where no charges were laid.
Had Banks won, it would have been another blow to news outlets across the country.
The ruling caused confusion in some quarters as Cadwalladr’s words, as interpreted by the judge, were false.
But, above all, Section 4 of the Defamation Act 2013 is designed precisely to account for inaccuracies when investigating matters of great importance.
It states: “It is a defense to a defamation action for the defendant to show that (a) the impugned statement was, or formed part of, a statement on a matter of public interest; and (b) the defendant reasonably believed that publication of the impugned statement was in the public interest. »
The judge, Mrs Justice Steyn, said it “reflects the appreciation that a journalist is under no obligation to guarantee the accuracy of their facts”.
It was undisputed that the publications denounced by Banks dealt with matters of public interest – Cadwalladr’s solicitor, Gavin Millar QC, said his journalism “raised questions going to the heart of the integrity of the British democracy” – and Steyn said the reporter had reasonable grounds for her belief, especially since at the time it was voiced the Electoral Commission and the National Crime Agency (NCA) were investigating Banks’ donations to Leave.EU.
For her efforts, Cadwalladr suffered abuse, much of it misogynistic in nature, including, Millar told the court, from Banks: “The plaintiff frequently attacked the defendant on social media, subjecting her to threats /misogynistic abuse, including tweeting (a) a video that seemed to condone violence against her and (b) suggesting that in Russia she wouldn’t be so ‘lippy’, i.e. she wouldn’t 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 humor. He faced accusations from free speech and press freedom campaigners, as well as Cadwalladr herself, that the case against her was a Slapp, particularly at the light of her wealth and the fact that he sued her personally, rather than the Ted organization, which provided the platform for his comments.
Steyn rejected this characterization, saying: “In circumstances where Mrs. Cadwalladr has no defense of the truth, and her defense of the public interest has been only partially successful, it is neither fair nor appropriate to describe this as a Slapp trial.”
However, by concluding that Cadwalladr could rely on Section 4 of the Libel Act, Steyn not only ended – subject to appeal – three years of uncertainty for the defendant, but gave a thumbs up to a media industry that, when it comes to court cases, has had little reason to cheer lately.
