Carol Cadwalladr liable for defamation damages after Court of Appeal rejects echo chamber argument
As those with an interest in media law will be aware, for a defamation claim to succeed it is necessary for a claimant to prove that they have suffered serious harm to their reputation, or are likely to (section 1(1) of the Defamation Act 2013). 10 years after its introduction, the interpretation of this statutory requirement is still troubling the courts.
In Banks v Cadwalladr  EWCA Civ 219 the Court of Appeal has explained how the issue of serious harm should be approached in the context of a libel claim where a significant change of circumstances occurred during the life of the publication, and whether a defence that was successful before that change (‘Phase One’) should be re-tested following it (‘Phase Two’). In the first-instance decision in Banks v Cadwalladr  EWHC 1417 (QB), Mrs Justice Steyn decided that not only the applicability of defences, but also the issue of serious harm, should be revisited at the start of Phase Two.
Equally significantly, the Court of Appeal considered so-called ‘echo chambers’ amongst readers of defamatory publications and how this may or may not impact upon the question of serious harm.
Ms Cadwalladr had published a TED Talk and a tweet in which she accused Mr Banks of secretly breaching electoral law by taking money from a foreign state, and then lying about it. Splitting Phase One and Phase Two was the outcome of a National Crime Agency/Electoral Commission investigation into the matter, which cleared Mr Banks of any wrongdoing. As a result, Ms Cadwalladr did not defend the claim on the basis that her accusations were true. She maintained, however, that they were a matter of public interest, and as such she was protected by section 4 of the Defamation Act 2013.
Steyn J decided that in Phase One the TED Talk was defamatory and caused serious harm to the claimant’s reputation, but that it was a matter of public interest, and the claim in respect of it failed. She decided that the tweet did not cause serious harm to the claimant’s reputation. She further decided that in Phase Two, after the outcome of the investigation was known, that the public interest defence would fail, but that Phase Two of the publication had not caused serious harm to Mr Banks’ reputation, and so that part of the claim failed too.
Issues under appeal
Mr Banks appealed, and the Court of Appeal was asked to decide three issues:-
- Whether, when a public interest defence falls away (as it had when the outcome of the investigation was published) a finding of serious harm from Phase One sustains a judgment in the claimant’s favour in respect of Phase Two (or whether it needs to be reconsidered).
- Whether a finding of no serious harm in Phase Two could be sustained on the basis of Steyn J’s reasoning (that publication was into Ms Cadwalladr’s ‘echo chamber’ and to people whose opinion of Mr Banks was of “no consequence” to him).
- Whether the alleged errors of law undermined the entirety of Steyn J’s judgment, and serious reputational harm should have been found in respect of both the TED Talk in Phase Two and the tweet generally.
Court of Appeal decision
The Court of Appeal’s judgment, given by Lord Justice Warby with whom the President of the King’s Bench Division Dame Victoria Sharp and Lord Justice Singh agreed, determined issue one in favour of Ms Cadwalladr. It found that it was correct in principle to reconsider the question of serious of harm once the public interest defence fell away.
On the second and third issues, the Court held that the only decision open to Steyn J on the facts of the case and the evidence before her was that the Phase Two publication of the TED Talk had caused serious harm to the reputation of Mr Banks, overturning her decision. This finding rested on the nature of the publication, rather than any direct evidence that serious harm was caused. Reliance was placed on the identity of the author (Ms Cadwalladr, an “award winning journalist”) and the TED Talk platform (an “authoritative and credible international” one).
The Court upheld Steyn J’s decision in respect of the tweet and her finding that it had not caused serious harm.
As a result of the decision, Mr Banks’ claim has partly succeeded, and he is entitled to damages (and potentially other remedies such as injunctive relief and costs (or a split costs order)).
There are two important consequences of this decision.
Firstly, the ‘echo chamber’ argument in defamation claims has suffered a serious, if not fatal, blow. In crude terms, a defendant publisher risks running into trouble by arguing that readers would not think any worse of a claimant because readers fall into two opposing camps: those who love the claimant (and therefore nothing bad said about the claimant, particularly by those with diametric political views, will change that) and those who despise them (and therefore whose opinion of them could not sink any further). Banks concerned only the latter type. As Warby LJ explained:-
“…If what the judge meant by the term “echo chamber” was that most of the publishees were people who disliked or had a generally low opinion of the claimant that was irrelevant to the question she had to decide. If, as I believe, what she meant was that in the minds of most publishees the claimant already had a bad reputation for the specific misconduct of taking foreign money in breach of electoral law and lying about it the evidence did not allow such a finding. The judge’s finding that harm to the claimant’s reputation in the eyes of these publishees was of “no consequence” to him was also unsustainable. If she meant that the claimant did not care what these publishees thought, that was legally irrelevant to the issue of whether serious reputational harm was established. There was no evidence to support a conclusion that others’ adverse opinions of the claimant were of “no consequence” to him in the sense that they could have no practical impact upon his life.”
This broadly follows the approach Warby J (as he then was) took in Monroe v Hopkins  EWHC 433 (QB). This is particularly relevant to Twitter and other social media claims where parties are often polarised and attract followers with similar views.
Secondly, the approval of the imposition of a second serious harm test where a statutory defence falls away changes the landscape for pursuing defamation claims.
This is particularly the case for people who may achieve some level of vindication from something external to the litigation (for example, findings of fact in a workplace grievance process, or, as in this case, the outcome of an external investigation). Claimants will have to be careful going forward in asserting claims where a change of circumstance may impose on them additional burdens, particularly where those changes of circumstance are outside of their control.
As Warby LJ points out at paragraph 48 of the judgment, the upshot of upholding Steyn J’s decision is that a single publication may be defamatory in one moment in time, but not defamatory in another moment in time. He also acknowledges how very alien this concept will be to a great many media lawyers.
Finally, most readers will be aware that Mr Banks’ claim had been championed by Ms Cadwalladr and other journalists as an example of a SLAPP (‘strategic lawsuit against public participation’), despite Steyn J specifically holding at first instance that it was not a SLAPP, but rather a legitimate claim to pursue. Now that the claim has been scrutinised by three Court of Appeal judges (including two media law specialists) and resulted in Ms Cadwalladr facing an order to pay damages for defamation, these protests sound rather hollow.
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Articles are intended as an introduction to the topic and do not constitute legal advice.