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Recent reporting that Carol Cadwalladr was ordered to pay Aaron Banks £1.2 million in a libel trial will have led most members of the public to believe that she lost the case. But she didn’t. In March 2023, the UK Anti-SLAPP Coalition welcomed the fact that the judge dismissed the majority of the appeal against Cadwalladr.
Banks originally lost his case against Cadwalladr last year, but following his appeal, Cadwalladr was ordered to pay £35,000 in damages to Banks. This was due to the potential harm caused to Banks’ reputation by the continued publication of the TED Talk (published in April 2019), after the Electoral Commission accepted in April 2020, that there was no evidence that the financing of Leave.eu breached electoral law.
How then has she ended up owing Banks so much money? The overwhelming majority of what Cadwalladr was ordered to pay are legal and court costs. Such costs quickly and easily run into the millions, given that most full-scale libel trials start at around £1 million. Even preliminary hearings, at which stage defendants can seek to have the case thrown out, can cost up to £100,000.
But what is striking about Cadwalladr’s case isn’t that it represents a departure from standards of justice – on the contrary, it indicates the extent to which those who are reporting in the public interest are vulnerable to legal harassment. Cadwalladr’s case demonstrates that, even if you win at trial, there is no guarantee that you won’t end up being liable for at least a portion of the costs. And that a portion can still end up costing hundreds of thousands, if not millions, of pounds.
The Power Imbalance
The fact that the real financial pain of such a legal action comes from costs rather than damages is a blatant invitation for abuse. Journalists who believe their reporting to have been accurate and in the public interest are nevertheless incentivised to avoid accruing costs. This means they will try to settle at an early stage, that is if they decide to mount any defence at all.
If they decide not to fight the case, they must remove their reporting – at a cost not only to them but to everyone’s ability to discuss, scrutinise and debate matters of public interest that are vital for democracy.
This is how SLAPPs – strategic lawsuits against public participation – are effective. Just the suggestion of a legal letter from a well-resourced individual can result in self-censorship. While Cadwalladr’s case bears multiple hallmarks of a SLAPP, it differs in that the vast majority of SLAPP cases never make it to court, much less to a full trial.
Earlier this year, Swedish investigative journalists agreed to settle their SLAPP case after a protracted legal battle, which saw the majority – but not all – of the case being thrown out on jurisdictional grounds. The mounting costs meant that continuing their battle was unfeasible.
They had been sued in London by a Monaco-based Swedish businessman who was claiming damages of approximately £13 million. The settlement meant that their articles could remain online, albeit three with a disclaimer. It was a pyrrhic victory given the financial and emotional costs to the journalists and their publication.
The characterisation of a lawsuit as a SLAPP isn’t an exact science, but a value judgement. We can infer the purpose of the lawsuit from certain indicative qualities, such as by observing any effort by the SLAPP litigant to maximise the power imbalance between them and the defendant.
The Swedish journalists, like Cadwalladr, were sued as individuals. The fact that it’s impossible to sue journalists individually in Sweden (only the responsible editor can be sued) may have been one of the reasons why the litigant decided to take legal action in the UK. Filing a lawsuit against an individual, instead of against their publication, puts the defendant’s own personal assets in jeopardy. It significantly ramps up the pressure financially and psychologically too.
The aim of a SLAPP isn’t to mount a successful legal case but to harass, silence, and discredit those speaking out in the public interest. And the British legal system is enabling powerful and wealthy people to do just that.
Last year Justice Steyn deemed Cadwalladr’s case to not be a SLAPP on the basis that two of her defences did not fully succeed in court. “In circumstances where Ms Cadwalladr has no defence of truth, and her defence of public interest has succeeded only in part, it is neither fair nor apt to describe this as a SLAPP suit,” Justice Steyn wrote.
But the reason Cadwalladr had “no defence of truth” was because another judge, Justice Saini, had deemed the “legal” meaning of what she said to have been different from what she believed. “The judge’s ruling meant that I was going to be put on trial to defend the truth of a statement I’d never actually said or meant,” Cadwalladr subsequently wrote.
“[I]n British courts, a judge determines what your carefully crafted wording means to them as a legal matter,” journalist Paul Radu said, explaining his experience of facing a SLAPP in London between 2018 and 2020. “Now you have to prove that judge’s legal meaning in court with real proof, even though you never said it, and maybe never meant it.”
Cadwalladr’s decision to drop the truth defence provided her detractors with a golden opportunity to discredit her and to imply that she did not believe in her own reporting. Incredibly, she was also ordered to pay Banks £62,000 in costs for having dropped the truth defence.
Yet the recent order to pay costs is the most damaging development in the case so far. Despite the court agreeing that what she said was in the public interest and acknowledging that she did not have the authority to remove the TED talk herself, she has been ordered to pay 60% of Banks’ costs.
The costs order once again provided Cadwalladr’s critics with “proof” of how inaccurate her reporting had been. But according to Cadwalladr’s legal team, the figure of £1.2m includes a £790,000 repayment to Banks. Banks had previously paid her that amount by order of Justice Steyn.
The power imbalance between SLAPP litigants and public watchdogs, which is being exacerbated by the legal system, must urgently be addressed in order to protect public interest speech. The UK Anti-SLAPP Coalition has put forward a model anti-SLAPP law aimed a ensuring that the injustices faced by Cadwalladr and other SLAPP targets cannot be perpetuated. Such legislation should urgently be enacted.
Visit antislapp.uk to find out more about SLAPPs and join the mailing list of the UK Anti-SLAPP Coalition