The resolve displayed by Carole Cadwalladr in her successful defence against a libel action brought by Arron Banks calls to mind Hemingway’s definition of courage as “grace under pressure”. For years, this award-winning journalist had been investigating the role of social media in our democracy and the role that Facebook in particular had played in the Brexit referendum. Since Banks was a leading figure in – and a substantial donor to – the leave campaign, she had inevitably become interested in his finances, and in a Ted Talk in April 2019 referred briefly to him in 24 words and later said something similar in a tweet.
The context for the remark was that the Times, the Observer and other news outlets had been reporting how Mr Banks had, as one lawyer put it, “misled everyone about the number, and nature, of his covert meetings with Russian officials”.
A judge held that Cadwalladr’s words conveyed a meaning that she said she had not intended and indeed didn’t believe to be true. She dropped her defence of truth and relied on one of public interest. Banks could have sued the publisher of the Ted Talk for defamation, but it was Cadwalladr personally that he chose to sue.
The significance of this will not be lost on anyone with experience of libel actions in British courts. The severity of this country’s defamation laws and the cost of fighting a case make the high court a casino in which too often only the very wealthy can afford to play. The potential costs of defending a case can run into millions of pounds and can be enough to persuade many publishers, let alone individual journalists, to back down and settle without going to court. When Catherine Belton, author of Putin’s People, and HarperCollins, her publisher, were sued for libel in 2021 by several oligarchs, including Roman Abramovich and a Russian oil company, she told MPs that her case had cost the publisher £1.5m in legal fees to defend and could have cost £5m if the case had gone to trial. (In the end, the cases were settled or withdrawn.)
These chilling realities, when combined with the complexity of defending a case under UK libel laws, explain why British journalists are reluctant to publish information about wealthy or powerful individuals. It takes courage to take risks – as Cadwalladr did – that could result in personal bankruptcy. As she herself says, the personal, physical, psychological and professional toll for her of fighting the case has been profound. That is why Robert Maxwell, a corrupt and litigious media tycoon, could escape critical media examination until he drowned after looting the pension fund of his publishing empire. Until recently, many London-based Russian oligarchs used the same strategy to intimidate journalists and authors.
The most positive outcome of the Banks case is the evolution of judicial thinking on what constitutes a public interest defence. The judge decided that, in light of Cadwalladr’s formidable investigative persistence, all the things she had unearthed about Banks, his finances and his meetings with Russian officials, it was reasonable to believe that it was in the public interest to have said what she did. This judgment is a triumphant vindication of a formidable journalist who endured unconscionable personal stress and misogynistic abuse to get her stories out. And it leaves the rest of us in her debt.