Melania Trump just got a typewritten apology and a fat check for untrue statements printed about her. Nick Sandmann and his fellow Covington Catholic High School students are still being attacked with the vicious lie that they engaged in racist harassment. How is that possible? The difference is that the publication that printed the untruths about the First Lady is the English Daily Telegraph, and the Covington Catholic kids were defamed in the United States.
“We apologise unreservedly to The First Lady and her family for any embarrassment caused by our publication of these allegations. As a mark of our regret we have agreed to pay Mrs Trump substantial damages as well as her legal costs.”
Such was the conclusion of The Telegraph’s statement, published in its pages, titled “Melania Trump – An Apology.” Americans might be surprised to learn the misstatements did not involve more outrageous or salacious rumors about Mrs. Trump. The corrections in the apology include: “Mrs Trump met Mr Trump in 1998, not in 1996 as stated,” and “[t]he claim that Mrs Trump cried on election night is also false.”
The burden-shifting is quite profound…
In the United States, defamation (including libel and slander) laws have a public figure exception that English laws do not. In order to defame a public figure in the United States, a person or publication must state something while knowing it to be false or with reckless disregard for its truth. What this means in practice is that it is near impossible for a public figure to win a defamation case. No one knows this better than Donald Trump, who spoke about changing defamation laws during his presidential campaign to make our system more like England’s, where the exceptions are much narrower.
“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”
Who Proves the Truth or Falsehood?
The United States is not a party to any convention on the enforcement of foreign judgments, nor is our country a party to any multilateral agreements for the enforcement of foreign judgments. That said, our courts generally enforce the valid money judgments of foreign courts. If you are sued in a foreign court, especially a British one, and lose, it’s very likely courts here in the United States will enforce that judgment against you. Not true for libel/slander/defamation. The United States enacted a federal law in 2010 precisely to prevent this kind of litigation, which had grown with the rise of the internet.
In the English courts, defendants must prove statements are true; in the United States, plaintiffs have to prove they are false. The burden-shifting is quite profound if you stop to think about it.
Some spectacularly bad cases that helped see the law changed included doctors sued for truthfully reporting problems with medical devices, as well as U.S. writer Rachel Ehrenfeld, who wrote that Saudi billionaire Khalid bin Mahfouz helped fund terrorism. Since the burden of proof was on the defendant to prove what they said was true, they most often lost these cases.
The English made some changes to their laws with the Defamation Act of 2013. While they did not flip the burden of proof, they did require plaintiffs to show that England is the proper jurisdiction to hear a case when the defendant does not live in England or Wales. That killed the worst of the libel tourists.
Melania’s case benefitted from the fact that she sued an English publication in England. She is making quite an industry of holding Fleet Street’s feet to the fires of Her Majesty’s courts. In 2017, another England-based publication, The Daily Mail, paid Mrs. Trump almost $3 million for defamatory statements.