British libel laws: No model for the United States
Daily News, November 3, 2016
Union Station, Washington DC, August 2016 © Andrew Stuttaford
Even though Princess Diana is no longer with us, there is still quite a lot that Donald Trump appreciates from across the pond. There's that Scottish golf course of his, there's Brexit, and, judging by a recent interview he gave to Miami's CBS 4, there are England's libel laws.
Trump, claiming to be a "tremendous believer (in) the freedom of the press," is significantly less enthusiastic about the news media's ability, as he sees it, to get away with "terrible, terrible mistakes," mistakes made "on purpose" and intended to "injure people." If he's been wronged, he said, he should be able to sue and so should "anyone else."
In England, maintained Trump, "they have a system where you can actually sue if someone says something wrong." And: "You have a good chance of winning. And deals are made and apologies are made," deals (with Trump it's always deals) and apologies that the U.S. media do not have to make.
I'm British-born and usually pretty chuffed when I hear my native land praised for the way that it manages its affairs, but this time not so much. To be clear about one thing first: Trump is not really talking about "anyone" being able to win damages for defamation by the media. What's bugging him is that in America it's very difficult for a "public figure" (and, trust me, Donald Trump counts as a public figure) to do so.
Under U.S. law and well-established precedent affirmed by the Supreme Court, where public figures are concerned, it's not enough to show carelessness, inaccuracy and damage.
Public figures also have to prove that "actual malice" was involved. That means that the statement was either published by someone who knew it was false or, assuming it turned out to be false, didn't care one way or the other. That can be tough to prove.
Over in England, public figures have it quite a bit easier, although not quite as much easier as Trump, not always known for keeping up with what goes on in the world, may think. In fact, a year or so back, English defamation law, which can be rougher on the press than on those complaining about it, was modified in ways that will make it harder for plaintiffs to use litigation or the threat of litigation to muzzle the media.
Changes included adding the requirement that a statement is not defamatory unless plaintiffs can show "serious harm" (or the danger of serious harm) to their reputations. For businesses, that now means demonstrating that they have suffered, or face the prospect of, "serious financial loss." Additionally, most cases will now be decided by a judge rather than a jury, which ought to reduce costs and, probably, damages.
The press should also benefit from the fact that a still somewhat hazy "public interest" defense has been given statutory force (thereby reinforcing the principle that it's OK to publish something that is — or might reasonably be thought to be — a matter of public interest). But a public interest defense would be far less of an obstacle to litigation by public figures in England than they could, to Trump's obvious irritation, expect to face in the U.S.
Despite these reforms, England's new law retains one key difference with American practice that will appeal to The Donald. In the U.S., it's the plaintiff who has to demonstrate that he or she has been defamed. But in England, it's the defendant who has to prove that what was published isn't defamatory, an obligation that comes with a degree of risk that some editors, journalists and publishers won't relish taking, a risk that helps explain, to take one notorious example, why the sex crimes — crimes that stretched over decades — of the disk jockey Jimmy Savile, a major celebrity in the U.K., went unreported until after his death in 2011.
This chilling effect on what will be published has, as a more recent controversy over a book on Vladimir Putin's finances shows, survived the new law, at least to a certain extent. It's an effect that, I suspect, Trump would be delighted to see spread to the U.S., a country blessed — up to now — with far greater protections for free speech than my homeland.
That mustn't happen. The case can be made that public figures in the U.S. are forced to climb too high a hurdle to defend their reputations, but that is a part of the price that preserving free expression demands.