As a presidential candidate in 2016, Donald Trump famously promised to "open up those libel laws" so that aggrieved public figures like him could sue irksome critics and "win money instead of having no chance." After Trump took office, he downgraded his vow to a suggestion, possibly because someone informed him that presidents have no power to change the state laws and judicial precedents that govern defamation claims. It might be time, he tweeted, to "change libel laws" in light of his perception that journalists had "gotten me wrong."
We can get some idea of what Trump had in mind from his long and astonishingly petty history of suing or threatening to sue writers who portray him in an unflattering light. In 2006, for instance, he demanded $5 billion from Timothy L. O'Brien, a financial journalist who had dared to suggest, in his 2005 book TrumpNation: The Art of Being the Donald, that the thin-skinned developer was not worth as much as he claimed. In 2018, Trump's attorney sent a cease-and-desist letter to Michael Wolff, threatening legal action if the author insisted on publishing Fire and Fury, an exposé about Trump's inner circle.
While these were hollow threats, Trump was right in thinking he might have faced better odds under a different legal regime. "In England, you have a good chance of winning," he told Miami's CBS affiliate in October 2016. "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."
It is not true that Americans "can say anything" with legal impunity. But it is true that the U.K. strikes a different balance between reputational interests and freedom of expression. While Trump thinks that balance is preferable, civil libertarians have long been troubled by the chilling effect that British defamation law has on truthful speech. Notably, Trump's praise of that system was prompted by the question of whether the First Amendment provides "too much protection."
In the U.K., defamation plaintiffs have two major advantages that Trump envies. First, they do not have to prove that an allegedly defamatory statement was false. Second, they do not have to show that the defendant deliberately or recklessly misrepresented the facts—the "actual malice" standard that the U.S. Supreme Court has said the First Amendment requires in libel actions brought by public figures.
Instead, the target of a British defamation lawsuit has the burden of establishing that he is protected by one of several recognized defenses. If he settles on a "defense of truth," he has to show it is more likely than not that "the imputation conveyed by the statement" was "substantially true." That plaintiff-friendly rule has made the U.K. a magnet for libel actions by prominent people whose claims might get a less receptive hearing in other countries, including American cyclist Lance Armstrong, Swedish businessman Svante Kumlin, and Russian tycoon Boris Berezovsky.
Emory University historian Deborah Lipstadt did not appreciate the distinction between British and American libel law in 1995, when she learned that English historian David Irving planned to sue her over her 1993 book Denying the Holocaust. In History on Trial, her 2005 account of the case, Lipstadt recalls chuckling at a letter from Penguin Books, her British publisher, about Irving's litigation threat. "This is really nuts," she announced. As Lipstadt puts it, "the world's most prominent Holocaust denier [was] threatening to sue me for libel for calling him a denier."
But Lipstadt (a longtime friend of my in-laws) soon learned that Irving's claims were no laughing matter in London. The lawsuit was taken quite seriously there, forcing Lipstadt to hire lawyers, experts, and research assistants who helped compile the exhaustive record that was necessary to rebut the allegation that she had libeled Irving. That process consumed five years of Lipstadt's life and cost $1.5 million.
The lawsuit ultimately backfired on Irving. In a 349-page judgment delivered on April 11, 2000, Charles Gray, a judge on the High Court of Justice, described Irving as a "racist" and "antisemite" whose "falsification of the historical record was deliberate," "perverse," "egregious," and "motivated by a desire to present events in a manner consistent with his own ideological beliefs even if that involved distortion and manipulation of historical evidence." Gray thought it was "incontrovertible that Irving qualifies as a Holocaust denier."
The case, which later inspired the 2016 movie Denial, provoked confused commentary from two British historians, who implied that Lipstadt and Penguin, the defendants, had launched an attack on Irving, the plaintiff. "Penguin was certainly out for blood," Donald Cameron Watt, who had testified at the trial, wrote in the London Evening Standard. "Show me one historian who has not broken into a cold sweat at the thought of undergoing similar treatment." In The Daily Telegraph, John Keegan, another trial witness, said "the news that David Irving has lost his libel case will send a tremor through the community of 20th-century historians."
Lipstadt was astounded by that take. "Apparently Keegan did not think that forcing an academic to defend her scholarly work at tremendous personal and professional costs would upset historians," she writes.
The threat to freedom of speech in that case came from Irving, not Lipstadt or Penguin. Although some countries, including Germany, France, and Canada, have criminalized Holocaust denial, Lipstadt does not support such laws (which would never pass constitutional muster in the United States). The issue in David Irving v. Penguin Books and Deborah Lipstadt was not whether Irving should be free to deny the existence of gas chambers at Auschwitz, argue that the mass murder of Jews was not an orchestrated campaign, or assert that Hitler was oblivious to what his underlings were doing. The issue was whether critics like Lipstadt had a right to take issue with such claims.
Lipstadt's vindication would not have been possible but for the steadfast support of her publisher and her employer, the generosity of financial donors, and the arduous, meticulous work of her legal team. Although her lawyers investigated the possibility of recovering legal expenses from Irving, she says, they concluded that the effort would cost more than it was worth.
"Defense of critical comments is so burdensome that British newspapers commonly give up when sued for libel," former New York Times columnist Anthony Lewis noted in the introduction to History on Trial. "They settle for what are called 'substantial sums' and make apologetic statements in court"—precisely the situation that Trump admires.
Lewis, who died in 2013, added that "even the threat of a libel action can be devastating." He noted that the British publisher Weidenfeld & Nicolson initially "shelved plans to publish a book by the historian John Lukacs that described Irving as 'an unrepentant admirer of Hitler' because it feared a libel suit." Even after Lipstadt's victory, the company "published the book but toned down the comments on Irving."
In 2008, The New York Times noted that "authors with controversial books try to steer clear of English law by not selling books there." One example: British publishers "avoided the unauthorized biography of Tom Cruise, which was written by Andrew Morton, because of concerns about defending the book in Britain."
But as the American terrorism expert Rachel Ehrenfeld discovered, avoiding publication in the U.K. wasn't a guarantee against facing a libel lawsuit there. Her 2003 book Funding Evil, which alleged that Saudi billionaire Khalid bin Mahfouz had used his bank and a charity to finance Al Qaeda, was not published in the United Kingdom. Mahfouz sued her there anyway. Ehrenfeld refused to appear, arguing that the British court had no jurisdiction over a libel case involving an author who lived in New York City and a book that had been marketed only in the United States. The result was a default judgment against her totaling about $250,000.
That case inspired New York legislators to pass the Libel Terrorism Protection Act, which barred state courts from enforcing foreign defamation judgments unless they are based on rules providing "at least as much protection for freedom of speech and press" as the U.S. and New York constitutions do. Seven other states subsequently passed similar legislation. In 2010, Congress unanimously approved the SPEECH Act, which says a foreign defamation judgment can be enforced in the United States only if it is compatible with American free speech standards or if the defendant would have been liable under U.S. law.
Although that restriction means American courts can't force authors like Ehrenfeld to pay libel damages ordered by English courts, the deterrent effect of that obstacle may be limited. Someone like Mahfouz, after all, is not in it for the money. "Crooks and brigands from around the world come here to launder their reputations," London lawyer Mark Stephens told National Public Radio in 2015, because "they couldn't get exculpation" in their home countries or the United States.
Even if a plaintiff never collects a dime, he can still cite a judgment in his favor (even a default judgment) as vindication. According to British lawyers who represent plaintiffs in defamation cases, the Times reported, "many of their wealthy clients are more interested in collecting legal judgments labeling allegations false than in reaping big payouts."
Thirteen years after the judgment against David Irving, Parliament responded to criticism of British defamation law by enacting several reforms. The Defamation Act of 2013 created new protections for material published in peer-reviewed journals, for operators of websites where messages are posted by third parties, and for statements the defendant reasonably believed to be in the public interest. It replaced the common-law defenses of "fair comment" and "justification" with "honest opinion" and "truth," respectively, but left the requirements for the latter essentially unchanged.
The law also imposed new limits on separate claims for republication of a statement by the same publisher. That is especially important in the internet context, where material was previously deemed republished each time it was accessed.
In an effort to discourage "libel tourism," the Defamation Act established a new rule for lawsuits filed in England or Wales against defendants who reside outside the U.K. Courts are now required to consider whether they are the most appropriate forum for disputes involving statements published in more than one country. To discourage trivial claims, the law requires that a plaintiff show an allegedly defamatory statement "has caused or is likely to cause serious harm" to his reputation.
The Defamation Act did not change the burden of proof or create a standard analogous to "actual malice" for lawsuits by public figures. Nor did it directly address the exorbitant cost of defending against a defamation lawsuit. Since April 2019, however, plaintiffs can no longer enter into "success fee" agreements with their solicitors and barristers, which promised a bonus for winning that often effectively doubled the legal costs that losing defendants had to pay.
The Defamation Act, which took effect on January 1, 2014, clearly did not eliminate the chilling effect of British defamation law. That same year, for instance, Cambridge University Press declined to publish American political scientist Karen Dawisha's book Putin's Kleptocracy, citing the threat of a libel action. "Even if the Press was ultimately successful in defending such a lawsuit," the publisher said in a letter to Dawisha, "the disruption and expense would be more than we could afford."
In a 2020 review of the Defamation Act's impact, the London law firm Brett Wilson concluded that the "serious harm" requirement had "created more of a level playing field," making it "far riskier for claimants to pursue claims out of principle or in order to 'punish' the errant publisher" when "they know that the publication has caused them little or no real-world consequences." But aside from that reform, it said, the act "has not substantially changed the law of defamation."
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