America, You Really Don’t Want Donald Trump’s Libel Laws

If the GOP frontrunner succeeds in his plan to make American libel laws as tough as Britain’s, the freedom of the press will suffer.

03.01.16 5:00 AM ET

So, Donald Trump says he would like to take on U.K. style libel laws if elected president.

Can he also take an inherited Royal head of state, the rainy weather, and our oppressive official secrecy with him as well? Then Americans would feel our pain. 

At a rally on Friday, during which the Republican frontrunner was endorsed by New Jersey Gov. Chris Christie, Donald Trump vowed revenge on the U.S. press by promising “to open up our libel so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”

To avoid all doubt about which newspapers he had in mind (i.e., ones that had criticised him) Trump continued: “So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

Welcome to my world, Donald, where the biggest threat to free speech is not press regulation or laws against incitement or harassment, but our chilling and atavistic laws of defamation.

Unlike U.S. libel laws—which, since the 1964 Supreme Court decision New York Times v Sullivan, require proof of “actual malice”—in the U.K. the burden is on the defendant to prove that a reputation has not been damaged.

Say I claim that I believe Donald Trump is a reactionary populist who barely comprehends the sentences independently issued from his mouth—I’d still be liable to be sued here, unless I could prove that opinion was an honest one.

Were I to go on and claim that, in terms of business success, Donald Trump only made his small fortune having inherited a bigger one, I could still be sued, though I would have a defence of “truth” since the wealth of the presidential hopeful would have grown as much if he’d invested his original legacy into a standard S&P 500 linked stock market fund.

Both statements are deemed defamatory in U.K. law, and the burden of proof is on me to prove they are just reasonable comment, have some justification or wheedle some kind of vague “public interest” imperative.

Basically, defamation law sucks here. Like our unwritten constitution which still frames us as “subjects” of the monarch rather than citizens, the libel laws of England and Wales—though reformed two years ago—still construe libel in terms of what the rich and powerful may lose by others writing anything about them.

This is in contrast to the U.S. tradition of the First Amendment which, as cited by Justice William Brennan in the Supreme Court’s majority opinion in 1964, implies: “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

The threat of libel sends a chill down the spine of any investigative journalist.

Say you’re looking at money laundering by a Russian oligarch, or the criminal empire of a major underworld gangster: you don’t fear the hit man with his baseball bat so much as the subject’s libel lawyers who can pin you down in a year’s worth of disclosure and legal bickering even if you’ve painstakingly documented every crime.

The nuisance effect of vexatious claims means that one of the biggest elements in the budget of any publication is their legal fighting fund, and many investigations—like that of the multiple claims of child abuse by TV personality and DJ Jimmy Savile before his death in 2011—are strangled at birth.

So bad is U.K. libel law that, up until two years ago, rich people would travel from all around the world to the London civil courts.

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Kate Hudson successfully sued the (virtually unknown) U.K. edition of the National Inquirer over here, in one lucrative example of “libel tourism.” Former White House adviser Richard Perle threatened to sue journalist Seymour Hersh in the U.K. on the same basis

A Serbian tobacco magnate, accused of underworld dealings elsewhere in Europe, tried to launch a libel case here because the laws are so favourable.

A Russian policeman, accused by a whistleblower of involvement in assassinations, also tried to take his case to a British court, even though he had no reputation here to defame.

Though the Defamation Act of 2013 has brought this “forum shopping” to a close, and created a new threshold of “serious harm” with financial consequences, the law has yet to be fully tested, and given that a recent brief private libel trial lasting only a few days cost nearly $5m in lawyers’ fees, defamation creates of professional deformation among most journalists, unless backed by a big new organization with deep pockets and aggressive in-house lawyers. 

Combine these oppressive libel laws with an instinctively secretive government, it’s frankly staggering that British journalists continue to expose any scandals at all. 

It’s no accident that the Guardian broke most of its Snowden revelations about NSA mass surveillance in the U.S.

In the U.K., their computers had to be completely destroyed under the watchful eyes of our security services. Sir Harry Evans, probably Britain’s most celebrated editor who exposed the Thalidomide scandal after years of campaigning, moved to the U.S. partly because the American attitude to public access to information was the reverse of his homeland’s.

In the U.S., if you pay for it—you can say it. Here, if you say it—you pay for it. 

Paradoxically, though denounced by some as another restraint on free speech, the recommendations from the judge-led inquiry into the press after the phone-hacking scandal, the Leveson Inquiry, promised a neat way out.

Instead of the costly courts, Lord Justice Leveson proposed a cheap arbitration system for press complaints that would protect both members of the public and journalists from vexatious and costly suits.

This was duly passed into law over two years ago in the Crime and Courts Act, with the support of all three major political parties and a triple lock in three assemblies against political interference.

Ironically, the mainstream press who opposed this new arbitration system (because they claimed it would be political interference) are now completely beholden to the whim of the current conservative Minister for Culture, Media and Sport, John Whittingdale MP, who is considered an “asset” by most the newspaper proprietors, because he’s not minded at present to sign the act into law.

So the current cockamamie libel situation seems to suit some of the press. Indeed, I was surprised during my live coverage of the Old Bailey trial of Rupert Murdoch’s protégé and CEO, Rebekah Brooks, to receive three libel threats myself—all from journalists.

A senior Murdoch editor and a former tabloid hack privately threatened to sue me over my book Beyond Contempt: The Inside Story of the Phone Hacking Trial.

Meanwhile, former Conservative MP and News U.K. columnist, Louise Mensch, said on Twitter she was going to sue me for claiming she abused her power as a lawmaker by going to work for the company she’d just investigated. None of these threats ever materialised. But the fact I feel wary even mentioning them now shows how chilling our libel law is to free expression.

So the scary thing about Trump’s outburst is that he hasn’t even thought of the consequences of what he said. But there is a more frightening thought: Perhaps he has thought it through, and is already reaping some reward.