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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Banks v Cadwalladr [2019] EWHC 3451 (QB) (12 December 2019) URL: http://www.bailii.org/ew/cases/EWHC/QB/2019/3451.html Cite as: [2019] EWHC 3451 (QB) |
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QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
ARRON BANKS |
Claimant |
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- and - |
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CAROLE CADWALLADR |
Defendant |
____________________
Gavin Millar QC and Ben Silverstone (instructed by Bindmans LLP) for the Defendant
Hearing dates: 4 December 2019
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Crown Copyright ©
MR JUSTICE SAINI :
This judgment is divided into 5 sections with two annexes as follows:
II. The Publications and the Rival Meanings: paras. [13-26]
III. Legal Principles: paras. [27-39]
IV. Application to the Facts: paras. [40-76]
V. Conclusions as to Meaning: paras. [77-81]
Annexe B: The Convention Speech
(a) A statement made by Ms. Cadwalladr in a 15 minute TED talk she gave in April 2019 (the "Ted Talk"). The full text of the Ted Talk is at Annexe A and given that it is intended to be heard (and not read as text) it is more appropriately considered in its original broadcast form. I return to this theme below. The Ted Talk can be found at https://www.ted.com/talks/carole_cadwalladr_ facebook_s_role_in_brexit_and_the_threat_to_democracy/transcript#t-739134. The specific words complained of are set out at para. [14] below. They are spoken 7 minutes into the Ted Talk. At the date of the Letter of Claim it hadbeen viewed more than 2 million times.
(b) A statement made by Ms. Cadwalladr in a broadcast talk entitled "The Convention: Never Again!" on 4 Jun 2019 ("the Convention Speech"). This is reproduced at Annexe B but again should be considered in the original form: https://www.youtube.com/watch?v=VyB99tdyKFA. The speech lasts for 18 minutes and the words complained of (set out at para. [18] below) are spoken 16 minutes in. At the date of the Letter of Claim it had been viewed on YouTube more than 5,000 times.
(c) A short tweet by Ms. Cadwalladr on 24 June 2019 ("the First Tweet"); and
(d) A short tweet by Ms. Cadwalladr on 11 July 2019 ("the Second Tweet").
II. The Publications and the Rival Meanings
(a) The Ted Talk
"And I am not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian Government."
(b) The Convention Speech
"We know that the Russian Government offered money to Arron Banks."
(c) The First Tweet
"Oh Arron. This is too tragic. Nigel Farage's secret funder Arron Banks has sent me a pre-action letter this morning; he's suing me over this TED talk. If you haven't watched it please do. I say he lied about his contact with Russian govt. Because he did."
(d) The Second Tweet
"Congrats, Alberto. And well done, Italy. This is how a relatively well functioning country should respond. Case is mirror image of Arron Banks + Russians. The total apathy/indifference to that here continues to shock & disturb."
"@Alberto Nardelli
BREAKING: Milan's public prosecutor has opened an investigation into Lega and Russia after BuzzFeed News released a tape of the Moscow meeting involving a close Salvini aide."
"Therein lies the danger of the use of dictionary definitions to provide a guide to the meaning of an alleged defamatory statement. That meaning is to be determined according to how it would be understood by the ordinary reasonable reader. It is not fixed by technical, linguistically precise dictionary definitions, divorced from the context in which the statement was made."
"11. The Court's task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words bear. It is well recognised that there is an artificiality in this process because individual readers may understand words in different ways: Slim v Daily Telegraph Ltd [1968] 2 QB 157, 173D– E, per Lord Diplock.
12. The following key principles can be distilled from the authorities:
(i) The governing principle is reasonableness.
(ii) The intention of the publisher is irrelevant.
(iii) The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be nai¨ve.
(iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.
(v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.
(vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.
(vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.
(viii) The publication must be read as a whole, and any 'bane and antidote' taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic "rogues' gallery" case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases).
(ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.
(x) No evidence, beyond the publication complained of, is admissible in determining the natural and ordinary meaning.
(xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.
(xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.
(xiii) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant's pleaded meaning)."
"They come from the decision of Brooke LJ in Chase -v- News Group Newspapers Ltd [2003] EMLR 11 [45] in which he identified three types of defamatory allegation: broadly, (1) the claimant is guilty of the act; (2) reasonable grounds to suspect that the claimant is guilty of the act; and (3) grounds to investigate whether the claimant has committed the act. In the lexicon of defamation, these have come to be known as the Chase levels. Reflecting the almost infinite capacity for subtle differences in meaning, they are not a straitjacket forcing the court to select one of these prescribed levels of meaning, but they are a helpful shorthand."
"i) The statement must be recognisable as comment, as distinct from an imputation of fact.
ii) Opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.
iii) The ultimate question is how the words would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.
iv) Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment.
v) Whether an allegation that someone has acted "dishonestly" or "criminally" is an allegation of fact or expression of opinion will very much depend upon context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact."
"38… I would conclude that a matter can be treated as part of the context in which an offending tweet if it is on Twitter and sufficiently closely connected in time, content, or otherwise that it is likely to have been in the hypothetical reader's view, or in their mind, at the time they read the words complained of. This test is not the same as but is influenced by the test for whether two publications are to be treated as one for the purposes of defamation: Dee v Telegraph Media Group Ltd [2010] EWHC 924 (QB) [2010] EMLR 20 [29] (Sharp J).
39. I would include as context parts of a wider Twitter conversation in which the offending tweet appeared, and which the representative hypothetical ordinary reader is likely to have read. This would clearly include an earlier tweet or reply which was available to view on the same page as the offending material. It could include earlier material, if sufficiently closely connected. But it is not necessarily the case that it would include tweets from days beforehand. The nature of the medium is such that these disappear from view quite swiftly, for regular users. It may also be necessary, in some cases, to take account of the fact that the way Twitter works means that a given tweet can appear in differing contexts to different groups, or even to different individuals. As a matter of principle, context for which a defendant is not responsible cannot be held against them on meaning. But it could work to a defendant's advantage.
40. [Counsel for the defendant] invites me to "extend" the principle, that context includes information in the wider publication that incorporates the statement complained of, by taking into account "facts and matters in the wider realm of Twitter generally as it was being experienced by the hypothetical ordinary reader at the relevant time". I have indicated how I do see the context in a Twitter case. But Mr Price has put forward a rather broad formula, which is also rather vague, and looks as if it might be somewhat over-ambitious. To the extent that it might draw in as "context" things that might or might not have been known to the ordinary reader, it would tend to erode the rather important and principled distinction between natural and ordinary meanings and innuendos."
"21… I noted in Falter -v- Altzmon [2018] EWHC 1728 QB that the rule from Charleston that readers are taken to read the whole of a publication has its limits in relation to links provided in an online version of an article:
[12] The Internet provides a degree of challenge to [the] orthodoxy [of Charleston] because it is possible to set out in on-line publications many hyperlinks to external material. It is perhaps unrealistic to proceed on the basis that every reader will follow all the hyperlinks, but everything depends upon its context. For example, if in a single tweet there is a single statement that says, "X is a liar" and then a hyperlink is given, it is almost an irresistible inference to conclude that the ordinary reasonable reader would have to follow the hyperlink in order to make sense of what was being said. At the other end of the spectrum, a very long article could contain a very large number of hyperlinks. Only the most tenacious or diligent reader could be expected to follow every single one of those hyperlinks. Such a reader could hardly be described as the ordinary reasonable reader. How many links any individual reader would follow would depend on an individual's interest in or knowledge of the subject matter or perhaps other particular reasons for investigating each of the hyperlinks in question.
[13] It therefore does not seem to me to be possible to put forward a hard and fast rule that hyperlinks imbedded in an article that is complained of should be treated as having been read by the ordinary reasonable reader…
I referred to Warby J's judgment in Monroe -v- Hopkins [2017] 4 WLR 68 in its treatment of hyperlinks in Tweets, before concluding:
[15] Monroe -v- Hopkins gives very helpful guidance, but it does not extend the principle of Charleston -v- News Group into a rigid rule that requires the court, when determining meaning, to include in consideration material that is available to be read or watched by way of hyperlink. What, if I might summarise, I derive from Monroe -v- Hopkins is that everything is going to depend upon the context in which material is presented to the reader.
[16] I suppose, ultimately, if it is a matter of dispute, the court is going to have to take a view as to what hypothetical reasonable reader is likely to do when presented by an online publication and the extent to which s/he would follow hyperlinks presented to him/her…
24… Whether readers follow links provided like this is influenced by a number of factors, including: (1) their familiarity with the story or subject matter and whether they consider they already know that they are offered by way of further reading; (2) their level of interest in the particular article and whether that drives them to wish to learn more; (3) particular directions given to read other material in the article; (4) if the reader considers that he or she cannot understand what is being said without clicking through to the hyperlink. It might be reasonable to attribute items (3) and (4) to the hypothetical ordinary, reasonable reader, but (1) and (2) will vary reader by reader."
(a) The Ted Talk
"And in a completely separate case, he's being referred to our National Crime Agency, our equivalent of the FBI, because our Electoral Commission has concluded they don't know where his money came from. Or if it was even British. And I'm not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian government. Or the weird timing of Nigel Farage's meetings with Julian Assange and with Trump's buddy, Roger Stone, now indicted, immediately before two massive WikiLeaks dumps, both of which happened to benefit Donald Trump. But I will tell you that Brexit and Trump were intimately entwined. This man told me that Brexit was the petri dish for Trump. And we know it's the same people, the same companies, the same data, the same techniques, the same use of hate and fear."
(a) First, there is a direct accusation that Mr Banks told lies. No amount of the context relied upon can provide an escape from that conclusion. This is a Chase level 1 type of case. The words are not capable, in their natural and ordinary meaning, to be suggesting merely that there are reasonable grounds to investigate a matter and I reject the Defendant's submissions to the contrary.
(b) Second, the reasonable viewer would consider the accusation to be that Mr. Banks told untruths on at least more than one occasion.
(c) Third, the relationship alleged between Mr. Banks and the Russian Government was clearly said to be something that was secret or hidden.
(d) Fourth, the reasonable viewer would not consider (given what had been said immediately before these words) that Ms. Cadwalladr was making a generalised allegation that Mr. Banks had lied about the nature of his secret relationship with the Russian Government (in other words, that there was some non-specific improper relationship unrelated to any subject-matter). One cannot divorce the meaning from the broad context in which this allegation was made. That context appears in the remainder of the Talk and its most crucial aspect is that the relationship Mr. Banks is said to have had with the Russian Government is relation to the issue of improper foreign funding of electoral campaigns. That is the connection a reasonable viewer would make.
(b) The Convention Speech
(a) First, although wider Russian strategic aims and threats to the UK are covered in the Speech, the part where the words complained of are found is more specific.
(b) Second, there is a simple statement that Mr. Banks has been offered money by Russia. There is no allegation that he has accepted such money.
(c) Third, in context, the offer appears to be one related to electoral matters (a viewer will have just heard from Ms. Cadwalladr on that subject). Someone viewing the Speech would come away with that message as the connection with Mr. Banks.
(d) Fourth, the part of the Speech where the relevant words appear refers to "question marks" and "enough information out there for us to be seriously concerned". This suggests that something needs to be investigated in relation to both the referendum result and wider issues. These are particularly significant pointers in my view in relation to the meaning.
(c) The First Tweet
"Oh Arron. This is too tragic. Nigel Farage's secret funder Arron Banks has sent me a pre-action letter this morning; he's suing me over this TED talk. If you haven't watched it please do. I say he lied about his contact with Russian govt. Because he did."
(a) First, it can properly be inferred that a reasonable representative of Ms. Cadwalladr's Twitter followers would have been interested in the background to, and issues raised by, the tweet. The tweet is a short message containing just a single link. The tweet gives little detail about the allegation against Mr Banks and in order properly to understand what is said a reasonable reader would consider it necessary to follow the link.
(b) Second, importantly, Ms. Cadwalladr positively invites the reader to follow the tweet ("If you haven't watched it, please do").
(c) Third, although it is a fact specific question in every case, I consider that this is the type of case referred to by Nicklin J in Falter -v- Altzmon [2018] EWHC 1728 QB at [12]. As a matter of obvious inference, I consider a reasonable reader would follow the link to the Ted Talk in order to obtain an understanding of how and in what context Ms. Cadwalladr said Mr Banks had lied.
(d) The Second Tweet
"Congrats, Alberto. And well done, Italy. This is how a relatively well functioning country should respond. Case is mirror image of Arron Banks + Russians. The total apathy/official indifference to that here continues to shock and disturb"
(my underlining of the words in issue).
Immediately below this tweet was Mr. Nardelli's tweet:
"BREAKING: Milan's public prosecutor has opened an investigation into Lega and Russia after BuzzFeed News released a tape of the Moscow meeting involving a close Salvini aide."
"Ahead of Britain's EU referendum in 2016, Brexit's biggest financial backer, Arron Banks, discussed gold and diamond investment deals offered via the Russian Embassy in London that promised vast profits. Banks, who is currently being investigated by the UK's National Crime Agency over the "true source" of £8 million he donated to the Leave.EU campaign, has said he ultimately declined the offers and repeatedly denied any wrongdoing."
On more than one occasion Mr. Banks told untruths about a secret relationship he had with the Russian Government in relation to acceptance of foreign funding of electoral campaigns in breach of the law on such funding.
Mr. Banks had been offered money by the Russians and that there were substantial grounds to investigate whether he would be willing to accept such funds in violation of prohibitions on foreign electoral funding.
There is a proper basis to investigate whether Mr. Banks' contact with Russia involved any criminal conduct just as the Italian government is investigating Lega's contact with the Russians.
ANNEXE A: The Ted Talk
[EU Funds: Investing in Wales] 01:55
(Laughter) 01:57
And with this illegal cash, "Vote Leave" unleashed a fire hose of disinformation. Ads like this. 06:06
[Turkey's 76m people joining the EU] 06:08
[Immigration without assimilation equals invasion] 08:32
because it feels more like a hate crime to me. 08:38
(Applause) 10:40
(Applause) 11:03
(Applause) 11:06
(Applause) 13:09
The history of the South Wales Valleys is of a fight for rights. And this is not a drill -- it's a point of inflection. Democracy is not guaranteed, and it is not inevitable, and we have to fight and we have to win and we cannot let these tech companies have this unchecked power. It's up to us -- you, me and all of us. We are the ones who have to take back control. 15:04
(Applause) 15:07
(Cheers) 15:10
(Applause)
ANNEXE B: The Convention Speech
10. I'm just going to show you sorry this is just very quickly. [Image of transcript with highlighted line: "and the Russian Ambassador in London. Defendant PAPADOPOULOS stated that the topic of their discussion was "to arrange a meeting between us and the Russian leadership to discuss U.S.-Russia ties under President Trump."] The person they were visiting inside the Russian Embassy was the Russian ambassador. This is an extract from the first indictment that Robert Muller unsealed where he talked about the Russian ambassador being a conduit between the Trump campaign and the Kremlin. That's there in black and white.
11. So whatever was going on with Arron Banks and Andy Wigmore, it was meeting with this person, and Nigel Farage said he said that he'd never met the ambassador. Here he is with him – [photograph of Nigel Farage shaking hands with man] [laughter] but doesn't have a great memory because when he was caught coming out of the Ecuadorian Embassy and he was asked what he was doing in there on the steps of the Embassy he said he couldn't remember what he was doing there either. [Laughter].