News: Melania Trump’s US Libel Action against MailOnline, what are its prospects of success?

2 09 2016

On 1 September 2016, Melania Trump issued libel proceedings in the Circuit Court for Montgomery County Maryland, against the New York based US publisher of MailOnline, Mail Media Inc, and a US blogger named Webster Griffin Tarpley.  The Complaint can be found here [pdf].  It seems that, under US libel law, such a claim is highly unlikely to succeed.

According to the Complaint, the Daily Mail “consciously doubted” the truth of the claims and admitted that they were unsubstantiated.  It was said that, at the date of filing, there had been no retraction or apology by the Daily Mail and that its conduct was

“despicable, abhorrent, intentional, malicious and oppressive and thus justifies an award of punitive damages” (Complaint, para 25)

It has been suggested that the claim was issued against Mr Tarpley so that the case could be brought in Maryland – on the basis that adding a “minor in-state defendant” would prevent the case being transferred to the the Federal Courts.

Background

The background has been widely reported.  The claim concerns a number of false allegations about Mrs Trump’s past – in particular that she had worked for a modelling agency which operated escorts.

The claim against MailOnline article concerns a 20 August 2016 article with the headline

‘Naked photoshoots, and troubling questions about visas that won’t go away: The VERY racy past of Donald Trump’s Slovenian wife’

It discussed, among other things, an article published by Suzy, a Slovenian magazine, alleged that Mrs. Trump’s modelling agency in New York, run by Paolo Zampolli, ‘operated as an escort agency for wealthy clients.’  Similar allegations were made in a blog on 2 August 2016 by Mr Tarpley.

It was widely reported that, on 22 August 2016, a lawyer acting for Mrs Trump, Charles J Harder, said that she

“has placed several news organizations on notice of her legal claims against them, including Daily Mail among others, for making false and defamatory statements about her supposedly having been an ‘escort’ in the 1990s.”

“All such statements are 100 percent false, highly damaging to her reputation, and personally hurtful,” Mr. Harder added. “She understands that news media have certain leeway in a presidential campaign, but outright lying about her in this way exceeds all bounds of appropriate news reporting and human decency.”

On 22 August 2016, Mr Tarpley made a “Formal Retraction of Factual Assertions and Innuendos Regarding Melania Trump“.

However, on 1 September 2016 Mr Harder announced that Mrs Trump would be suing the Mail and Mr Tarpley.  He said

“These defendants made several statements about Mrs Trump that are 100 per cent false and tremendously damaging to her personal and professional reputation.

Defendants broadcast their lies to millions of people throughout the US and the world — without any justification. Their many lies include, among others, that Mrs Trump supposedly was an ‘escort’ in the 1990s before she met her husband. Defendants’ actions are so egregious, malicious and harmful to Mrs Trump that her damages are estimated at $150m.”

Later that day, MailOnline published a lengthy “retraction” – though it could not bring itself to use the word “apology”.  It was said that

To the extent that anything in the Daily Mail’s article was interpreted as stating or suggesting that Mrs. Trump worked as an ‘escort’ or in the ‘sex business,’ that she had a ‘composite or presentation card for the sex business,’ or that either of the modeling agencies referenced in the article were engaged in these businesses, it is hereby retracted, and the Daily Mail newspaper regrets any such misinterpretation.

Prospects of Success

There is no dooubt that the claim by Mrs Trump faces formidable legal difficulties in the US Courts.  The First Amendment provides very strong protection against libel actions . In the famous case of New York Times Company v. Sullivan (376 U.S. 254 (1964)) and the cases that followed it was established that a public figure plaintiff must prove “actual malice”.  In other words, it must be shown that the defendant published the statement with either knowledge of falsity or in reckless disregard of whether the statement was true or false.  Such a plaintiff must prove actual malice with “convincing clarity.” Anderson v. Liberty Lobby, 477 U.S. 242 (1986).

As the wife of a presidential candidate – who is an active member of his campaign – Mrs Trump is plainly a public figure.  On the basis of her complaint it is very difficult to see how she can establish actual malice.  It seems likely that her claim will be the subject of a successful dismissal application at an early stage.

It is, perhaps understandable, that Mr Tarpley has made the following statement about the action on his website

“Melania Trump’s lawsuit against me is without merit. Mrs. Trump is a public figure actively engaged in the Trump for president campaign. We are confident that Mrs. Trump will not be able to meet her high burden of proving the statements published about her on my website were defamatory in any way. Her lawsuit is a blatant attempt to intimidate not only me but journalists of all stripes into remaining silent with regard to public figures. This lawsuit is a direct affront to First Amendment principles and free speech in our democratic society”.

The position is very different in England and Wales where a defamatory statement is presumed to be false and the burden is on the defendant to prove truth.  The only hurdle for the claimant to overcome is that of showing that the statement caused or is likely to cause “serious harm to reputation” (see generally, this post).  If Mrs Trump overcomes this hurdle then the Daily Mail may face considerable difficulties in defending an English libel claim.


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