Inference of serious harm in the context of online publications past their peak and after the public interest defence falls away: Banks v Cadwalladr

Abstract

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.