Donald Trump's presidential campaign is all about American greatness — unless the subject is freedom of the press, in which case the Republican nominee thinks England is much more tremendous than the United States.
TRUMP: Well, in England they have a system where you can actually sue if someone says something wrong. Our press is allowed to say whatever they want and get away with it. And I think we should go to a system where if they do something wrong — I'm a big believer, tremendous believer, of the freedom of the press. Nobody believes it stronger than me, but if they make terrible, terrible mistakes and those mistakes are made on purpose to injure people — I'm not just talking about me; I'm talking anybody else then, yes, I think you should have the ability to sue them.DEFEDE: So you'd like the laws to be closer to what they have in England?TRUMP: Well, in England you have a good chance of winning. And deals are made and apologies are made. Over here, they don't have to apologize. They can say anything they want about you or me, and there doesn't have to be any apology. England has a system where if they are wrong, things happen.
For the record, American journalists are not “allowed to say whatever they want and get away with it.” But they are protected by a legal standard known as “actual malice” when sued by public figures. According to the Legal Information Institute at Cornell University Law School, “Actual malice means that a statement was made with knowledge that it was false or with reckless disregard of whether or not it was false.”
In other words, an American media company will not lose a libel case simply because its journalists made a mistake; the news report in question may contain inaccuracies, so long as it was published in good faith.
In England, however, news outlets must “prove that the words complained of were true or substantially true.” There is no allowance for innocent mistakes, and it is possible for media companies to lose cases based on statements that are logical but cannot be proven in court.
Until recently, English law was so tough on the media that disgruntled subjects of news reports could use the country's court system to carry out what the New York legislature called “libel terrorism.” That provocative phrase appeared in the title of a bill passed in New York in 2008 that created the model for the federal Speech Act of 2010. “Libel terrorism” refers to the act of suppressing press freedom by bringing lawsuits against American journalists in foreign countries, such as Britain.
In one notable case, a Saudi businessman filed a libel case in England after a New York-based author and documentary film producer accused him of funding al-Qaeda. Neither the book nor the documentary containing the accusation was released in England, but the businessman, Khalid bin Mahfouz, believed the English legal system gave him the best chance to win. When the journalist, Rachel Ehrenfeld, refused to show up for court, she was ordered to pay a fine of about $250,000.
The New York law, often referred to as “Rachel's Law,” and the federal Speech Act protect American journalists from such penalties by authorizing U.S. courts to ignore foreign libel rulings.
In 2014, England tightened geographic restrictions on libel suits and imposed a new requirement that complainants show “serious harm.” But the burden remains on journalists to prove the truth of their reporting.
What Trump is proposing represents a radical shift. Just six years ago, Congress found England's libel laws so oppressive that it enacted a new U.S. law to protect American journalists who might be sued across the pond. Now, Trump wants the United States to change its own libel laws to resemble England's.
