Trump's idea to 'open up' libel laws works just fine for us in Britain
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Donald Trump, the Republican Party nominee for president, enjoys a good fight – and it seems he’s keen to take on the power of The New York Times over the country's longstanding libel laws.

In the final stages of electioneering, all eyes have been on Trump's alleged inappropriate advances towards women. As a result, The New York Times advanced — inappropriately, according to Trump — onto his reputation by reporting the accounts of two women who claim to have been his victims.

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The Donald didn't like the article — so he called in the lawyers. They demanded the removal of the article from the newspaper's website on the grounds that it was “reckless, defamatory and constitutes libel per se,” threatening that absent satisfaction, their client will be left “with no option but to pursue all available actions and remedies.”

That tough talk means if they don't budge, Trump will sue. But can he?

Not under the current law. But under “President TrumpDonald John TrumpGOP congressman slams Trump over report that U.S. bombed former anti-ISIS coalition headquarters US to restore 'targeted assistance' to Central American countries after migration deal Trump says lawmakers should censure Schiff MORE,” apparently so.

His brave new world envisages revised libel laws, allowing public figure plaintiffs to sue to ensure that when newspapers write “purposely negative and horrible and false articles, we can sue them and win lots of money.” Promising to “open up our libel laws” if he wins, seemingly means removing the actual malice requirement for public figures — and perhaps even reversing the burden of proof.

To paraphrase George Bernard Shaw, Britain and America are divided by a common libel law — America’s appears, in some respects, to be the mirror image of ours. In England and Wales, where I work as a media law specialist, the burden of proof is on the claimant to establish the requirements of a defamation claim.

If libel is a tennis match, the claimant must hit three important balls across the net to get his game off the ground. He must establish that it is a publication to persons other than himself; that identifies him; and that is defamatory of him. 

This applies whether the claimant is a private person or a public figure. If his legal balls make it safely across the net, the defendant then gets the chance to knock the ball back, and the case out, by successfully maintaining a defense

In the U.S. however, the “reverse burden of proof” means that it is the plaintiff who must show that the allegations are false — not the defendant who must prove them true.

Your perspective seems anathema to claimant lawyers in England. Why should the press be at liberty to publish what it likes, leaving a poor — and perhaps literally impecunious — plaintiff with having to prove a falsity that should never have been published in the first place?

However, what seems to gall Trump is the added burden to a U.S. public figure plaintiff who, under American law, must show that the publisher published maliciously. In other words, they published knowing that the statement of complaint was false, or with reckless disregard to its falsity.

With a couple more libel tennis balls to whack over the litigation net stateside, it’s a harder game to play for the public figure plaintiff.

As a claimant lawyer, I value free speech as much as the next man — provided that the next man is not an apologist for the media watchdog viciously ripping apart the privacy and reputation of an undeserving individual.

While the words “freedom of speech” run through an American citizen and his court system like blood in his veins, should this right be given such an exalted place in society?

Free speech should not come cheap, and where lasting and distressing damage can be done to a reputation by the publication of defamatory allegations, should the publisher not be under a more onerous obligation to prove that what he intends to publish is true?

Trump appears to think so. But if he is looking to our shores for some comfort and precedent, he may be unexpectedly disappointed.

The laws of England and Wales have long been decried by the papers as oppressive and draconian. Yet our press remains some of the most vibrant, satirical and inquisitive — and invasive and salacious — in the world.

While Fleet Street bemoans the chilling of its free speech, it warmly embraces the opportunity to have a pop at a politician or to sacrifice a celebrity on the editor's altar.

“President” Trump will also have to bear in mind that any revision of libel protections — in place since New York Times v Sullivan in 1964 — may not go down well with U.S. courts. Likewise, what about the public?

Putting the flamboyant personality of Trump aside, government ministers, public officials and others involved in high level decisions need to have broader shoulders than John and Jane Doe. But they should not be deprived of recourse to justice when they are unfairly attacked and their reputations traduced.

Taking the daily rough and tumble of politics is one thing — being a political punch bag for the press is another.

So while there is a need for all of us at times to “man up,” that does not mean that we should have to live with the worst excesses of the press without anyone coming to the rescue of the “man down.” 

In England, press complaints about free-speech chilling led to the Defamation Act 2013. Where a statement complained of is on a matter of public interest and the defendant reasonably believed that its publication was in the public interest a responsible publication defense will apply.

Mirroring that somewhat, The New York Times lawyer responded to his oppo's letter of complaint, asserting that the women quoted in the article which caused this furore, “spoke out on an issue of national importance;” and that the paper’s reporters “diligently worked to confirm the women's accounts.” Content their story was in the public interest, The Times added that its actions were within the law, and that “it would have been a disservice not just to our readers, but to democracy itself to silence their voices.”

As a media litigator, I am no pussy-cat, and I robustly fight my clients' corners. Here, we have two sets of people, both arguing that the other is lying. If public vindication is something that the ladies and The Donald both feel is the only way for them to remedy their damaged reputations, then the battle lines may be drawn.

But a word of caution to Trump — be careful what you wish for.

If the law is changed so that public figures can sue, will his political opponent (aka “Crooked Hillary”) be readying her own team of lawyers to take full advantage of the change?

To tweak an analogy that, so far as I know, Trump has not yet used: What's good for the gander is also good for the goose.

Melville-Brown, Head of Media & Reputation, Withers Worldwide based in London.


The views expressed by Contributors are their own and are not the views of The Hill.