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ABSTRACT
In Banks, the Court of Appeal agreed with the trial judge that serious harm needs to be reassessed once the public interest defence falls away but disagreed about the assessment of serious harm arising from online publications in that phase. The ‘natural inference’ based on the extent of publication and gravity of the allegation was that there had been serious harm to the claimant’s reputation. However, the Court did not pursue a contextual analysis and left open certain questions about the role of inference in the assessment of serious harm in such cases. This article argues that the Court of Appeal’s judgment in Banks should not be interpreted as implying that serious harm can be inferred from the gravity of imputation and extent of publication alone, and raises a question about the relevance to the assessment of serious harm of factors which cause the public interest defence to fail.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 [2023] EWCA Civ 219.
2 Banks v Cadwalladr [2019] EWHC 3451 (QB) at [77]. There were in fact four publications complained of originally, including a convention speech made by Ms Cadwalladr and another Tweet. Only the TED Talk and first tweet were considered to have defamatory meaning, see Banks v Cadwalladr [2019] EWHC 3451 (QB) at [78] and [79].
3 ‘Public statement on NCA investigation into suspected EU referendum offences’, 24 September 2019.
4 Joint announcement by The Electoral Commission, Mr Robert Posner, Mr Arron Banks and Ms Elizabeth Bilney, 29 April 2019.
5 Banks v Cadwalladr [2022] EWHC 1417 (QB).
6 ibid, at [9]. The defendant had initially put forward defences of limitation, truth and public interest, but later amended the defence to remove the limitation and truth defences.
7 ibid, at [10].
8 ibid, at [81].
9 ibid, at [86].
10 ibid, at [92].
11 ibid, at [93].
12 Indeed, this takes up a large part of a lengthy judgment, [143]–[375].
13 ibid, [106]–[111].
14 ibid, [112]–[114].
15 ibid, [124]–[134].
16 ibid, [115]–[123].
17 At [399].
18 ibid, at [407]. This is dealt with relatively briefly. More is said about whether the defendant appreciated the single meaning also, [409]–[412].
19 ibid, at [59]. Namely, because it would ‘run counter to the purpose of the provision’, because damages assessment must exclude any period of a valid defence and there is no basis to treat the serious harm threshold any differently, and because the single publication clearly only applies for the purpose of limitation in s 8, [57]–[59].
20 ibid, at [98].
21 This is how the appellant presented the grounds. Above, (n 1), at [36].
22 ibid, at [47].
23 ibid, at [70].
24 ibid, at [9].
25 ibid, at [8].
26 ibid, at [59].
27 ibid, at [57].
28 Citing the Dingle rule (Dingle v Associated Newspapers Ltd [1964] AC 371), at [59].
29 ibid, at [59].
30 ibid, at [60].
31 ibid, at [64].
32 ibid, at [64]. Addressing the strike out application in Ames v Spamhaus Project Ltd [2015] EWHC 127 (QB).
33 ibid, at [63].
34 ibid, at [66].
35 ibid, at [63].
36 ibid, at [68].
37 ibid, at [67].
38 On the Ministry of Justice’s recent response, see https://www.gov.uk/government/consultations/strategic-lawsuits-against-public-participation-slapps/outcome/strategic-lawsuits-against-public-participation-slapps-government-response-to-call-for-evidence.
39 At [21].
40 Notably, the EWCA did not endorse Steyn J’s definition in its entirety (i.e. that the claim was not one because the claimant’s attempt to seek vindication through the proceedings was ‘legitimate’, and because the defendant had no defence of truth, and her defence of public interest succeeded only in part). The EWCA only stated that ‘neither fair nor apt’ as the claimant’s ‘attempt to seek vindication through these proceedings was … legitimate’. ibid.
41 ibid [42].
42 My emphasis.
43 Above (n 1) [43].
44 ibid [57].
45 Associated Newspapers Ltd v Dingle [1964] AC 371, as per Lord Denning, at 412. There is also the policy reason that it would limit the plaintiff to action against the person ‘who set the ball rolling’ (as per Lord Radcliffe at 396). See also on this basis, Warby J in Lachaux v Independent Print Ltd and another [2015] EWHC 2242 (QB) [74]-[84] who agreed with the approach both ‘in terms of both principle and pragmatism’.
46 Lachaux [2019] UKSC 27 at [24].
47 Even if it was published only to people in the defendant’s own echo chamber, it is still possible that the lowering of the claimant’s reputation in their eyes could have some practical effect on him.
48 Above (n 32).
49 Above (n 1) at [64].
50 Above (n 5) at [97].
51 Above (n 1), in the ‘summary’ at [7], Warby LJ states ‘I am not persuaded that the judge made the first of the alleged mistakes [failed to consider scale of publication], but I have concluded that she made the second and third of them’ [‘echo chamber’ and ‘of no consequence’]. These are indeed the headings under ‘the approach to the assessment serious harm’, at [52]–[64].
52 ibid, at [67].
53 ibid [68].
54 Gatley on Libel & Slander 13th edn (2022) 4-014. In Lachaux SC ‘inherent probabilities’ continue to have some value in combination with the meaning of the words, the situation of the claimant, and the circumstances of publication, at [21]. The tone there was set by Warby J himself, who at trial held that in cases where there are difficulties in producing evidence of harm, ‘the serious harm requirement is capable of being satisfied by an inferential case, based on the gravity of the imputation and the extent and nature of its readership or audience’. (Lachaux [2015] EWHC 2242 (QB) at [57]). See also, as per Warby J in Doyle v Smith [2018] EWHC 2935 (QB) at [117], and in Ames above (n 32) at [55].
55 As per Bean J in Cooke v MGN [2014] EWHC 2381 (QB) at [40], ‘it is never possible to ascertain who, exactly, has read them and what effect the have had on the mind of such readers’.
56 As per Warby J in Gubarev v Orbis [2020] EWHC 2912 (QB) at [45]. See also, Nicklin J in Amersi v Leslie and another [2023] EWHC 1368 (KB) at [80].
57 Lachaux [2019] UKSC 27 at [14].
58 Economou v De Freitas [2018] EWCA Civ 2591at [41].
59 George v Cannell [2021] EWHC 2988 (QB). There have of course been cases which involve extensive publication of serious allegations, which nonetheless failed for want of evidence that the publication complained of caused serious harm to the claimant’s reputation. In Cooke v MGN [2014] EWHC 2381 (QB), for example, although Bean J admitted that ‘some statements are so obviously likely to cause serious harm to a person’s reputation that this likelihood can be inferred’, he did not consider the article published in a national newspaper alleging the claimant landlord had personally profited of the misery of his tenants fell into that category, and denied the claim on the basis that there was ‘no specific evidence that the article had caused serious harm’ (at [45]). See also Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB) involving allegation in a weekly Portuguese newspaper, with some online publication in England and Wales, that the claimant misappropriated millions of dollars from funds held in a bank. Dingemans J concluded: ‘I am unable to identify, on the evidence, why no serious harm was caused to Mr Sobrinho’s reputation, but there was none’ (at 96).
60 As per Saini J put it in the meaning hearing. Above (n 2) at [40].
61 Gatley, citing Lachaux, above at (n 54) (where Warby J gave the example of ‘murder or serious sexual crime’), Coker v Nwakanma [2021] EWHC 1011 (QB), and Monir v Wood [2018] EWHC 3525 (QB). Sewell reports that ‘40% of judgments involving alleged criminal conduct led to an inference of serious harm’, C Sewell, (2020) ‘More serious harm than good? An empirical observation and analysis of the effects of the serious harm requirement in section 1(1) of the Defamation Act 2013’, 12 Journal of Media Law 1, at 66.
62 Above (n 5) at [61].
63 Above (n 1) at [80].
64 ibid at [68].
65 Above (n 61).
66 Above (n 1) at [68].
67 Above (n 5) at [97].
68 Above (n 1), at [68].
69 See, eg, Richard Lanham, The Economics of Attention: Style and Substance in the Age of Information (University of Chicago Press 2006); M Hilbert and P López, ‘The World’s Technological Capacity to Store, Communicate, and Compute Information’ (2011) 332 (6025) Science 60.
70 [2018] EWHC 3525 (QB) at [90].
71 [2017] EWHC 433 (QB) at [39].
72 Webb v Jones [2021] EWHC 1618 (QB) at [41].
73 The evidence was not clear about what the relative distribution was on both those platforms, see (n 5 at [66]).
74 For example, in its last published figures in July 2021, The Guardian sold an average of 105,134 copies each day, Audit Bureau of Circulations.
75 In another case several months after her decision in Banks, in Riley v Sevier [2022] EWHC 2891 (KB), Steyn J recognised a reduction of 5% for repeat viewings of a Tweet, which still amounted to an extensive publication. However, the judge went on to examine further evidence of serious harm and, in that case at least, was able to point to a meeting which the claimant TV presenter was called to with her employers as to ‘how to get on the front foot’ and address complaints made about her by people on Twitter. One would think that a video would gain a greater percentage of repeat viewings, though perhaps not more than 10%.
76 In the recent case of Packham v Wightman and others [2023] EWHC 1256, counsel for the claimant had tried to rely on the Court of Appeal judgment in Banks to assert ‘inherent tendency of harm’. Saini J (at [26]) denied that interpretation of Court of Appeal judgment, saying its ‘important not to dilute the "serious harm" element of the cause of action using the inference of harm argument to such a degree that it becomes so easy to satisfy the requirement that it becomes meaningless’.
77 Another important difference is that a reasonable person may believe it is not in the public interest to publish an allegation, but still think less of the claimant when they hear it. Also, lack of respect for an official report was one of the factors listed as undermining reasonability of belief in the public interest in Reynolds v Times Newspapers Ltd [2001] 2 AC 127.
78 [2021] EWHC 1805 (QB) at [165].
79 ibid.
80 ibid.
81 ibid.
82 [2017] EWCA Civ 1334 at [60].
83 Dingle v Associated Newspapers Ltd [1964] AC 371.
Additional information
Notes on contributors
Mark Patrick Hanna
Mark Patrick Hanna is an Assistant Professor in Media Law at Durham University.