Facts of the Case
The website BuzzFeed has published an article on the existence of alleged intelligence reports claiming that the Russian government has a dossier of information about Donald Trump collected over years. With the article, the BuzzFeed website has also attached the alleged intelligence report for all to see. According to the website, the source of information is a person claiming to have worked for the British Intelligence offices. The report alleges that Donald Trump has personal ties with the Russian government who have also been assisting and supporting his campaign efforts. Trump feels that these allegations are an attack on his person and reputation hence he wants to sue for defamation and libel. In this case brief, I will advise Donald Trump on whether I believe he would win this lawsuit.
Libel is viewed as defamation by any form of communication that touches on a person reputation. In a court of law, a lawsuit can be filled by a compensation for injuries on profession or personal reputation claiming compensation from a publisher who reports falsified information that exposes the victim to hatred, ridicule or public contempt (Cornell.edu, 2015). However, an attack on a public figure reputation requires that even after the plaintiff proves that publisher knew that published the statement was false before publishing, and the publisher printed the statement without regards for its truth or not which constitutes ‘actual malice’ (Sack, 2014). Actual malice, therefore, relates to knowing that the publisher knew the statement was false before publication yet went ahead and published it or failed to perfume a background check on the validity of the information printed before going to print (Abraham Keller, 2014).
In any libel and defamation lawsuit filed by any public figure the burden proof falls to the plaintiff (Edmondson, 2017). In other countries, the publisher is liable for all the defamatory statement published but in the United States, the First Amendment protects the publication of all statements about public figures. The publisher can make defamatory statements concerning the conduct of Public officials and the court can hold them liable if the statements were made with actual malice. The plaintiff, therefore, must prove to the courts that the publisher was at fault when publishing the defamatory statement. Actual malice in defamation suits removes the feeling of the reporter towards the public figure from the case. To the courts, the conditions of actual malice requires that the plaintiff prove that the publisher printed the statement while fully aware of the fact that it was false and in doing his duties, the reporter disregarded the truth or the falsity of the statement (Youm, 2014). Actual malice conditions requires the plaintiff to produce clear evidence to convenience the courts that there publisher deliberately published false information while fully aware it was false and didn’t bother to check whether the information was false or true with the public figure or the source of the information.
The two standards of actual malice require Donald Trump to prove that BuzzFeed knowingly published false information about him and didn’t bother to check whether the information was false or true. The publisher shouldn’t publish any information that false and even when making any statement about public figures, it’s important that they do some background research to ascertain the validity of their sources and contact them for a comment. In this case, the website can only be held liable for defamation using falsity if there was no effort to ascertain the truth or false nature of the allegations. As they stated in their report, these are allegation made by a third party hence the website is simply reporting the information they have which is their job (Ken Bensinger, 2016). According to their publication, these are explosive and unverified allegations that can neither be confirmed nor denied by the website. In the entire article, there is no single point where the report mentions any single allegation statement, addition or comments made by anyone else in the website offices but only quote from their unknown source. Their research in the information already points at the discrepancies they too identified in the dossier which distances the website from all the alleged information on Donald Trump.
In 1964, the Sullivan case transformed actual malice from common law ‘element of a libel plaintiff burden of proof’ to a constitutional one when they ruled in favor of the New York Times. In the case brought against the newspaper for defamation, the court held that for a public officer (Sullivan) to receive compensation from the defendant, he must prove that the publisher made the defamatory statement while fully aware it was false. Thus, ill will, contempt and hatred has nothing to do with the publishers intentions of publishing a false statement hence the plaintiff must prove that the publisher knew the information to be false beforehand and the publisher didn’t take any steps to establish the truthfulness or falsity of these statements (US Courts , 1964). In this case, there is plenty of effort to establish the validity the information in the dossier from the website.
To win this law suit, Donald Trump has to prove that the website published this information:
- with knowledge that it was false
- with reckless disregard of whether it was false or not
With knowledge that information was false is something hard for the plaintiff to prove in a court of law because they are not the source of the information. The dossier is a collection of allegations made about the presidential campaign, the candidate and some of things in these files cannot be countered in a court of law. While it’s possible to argue all the information is fabrications, there is no way of disputing them with absolute certainty from Trump’s campaign team or the opposition accused of preparing these files. The publisher has no way knowing establishing that this information is false. Without any knowledge that the dossier was all falsified, the plaintiff cannot seek any damages in a court of law.
Disregard of whether the information was false or not brings us to the next complication with this suit. After receiving information from their source, the next step requires due diligence by the publisher. Once they have these allegations, BuzzFeed conducted an investigation of their own on the validity of these allegation. To highlight their regard whether the information was true or not, they have already made numerous corrections to the information hence they showed regard to whether the information was true or false. Identifying inconsistencies in the dossier and refraining from ascertaining anything in the publication clearly shows that the website is concerned with establishing the validity of the information. Before going to print, they directly contacted Trump’s attorney, who denies the allegations which is proof of background research.
Tavoulareas v. Piro in the D. C Circuit court argued that the defendant’s attitude towards the plaintiff in defamation cases shouldn’t be used as way of establishing actual malice (Abraham Keller, 2014). While the website might have printed this report as a way of increasing their viewing and rating with those opposed to Trumps election to presidency, their case is well researched which makes it fully acceptable. In this context, the details in the dossier may be all lies or fabrications by the opposition but since the article already mentioned that, then there is no law against reporting what is written by others. The Website has distanced itself from all the reports, labeled them as allegations already and made sure that they too raise concerns about the validity of the details provided by their source. In the end, they attached the entire document to their publication without any opinions on whether they supported these allegations which makes it hard to prove defamation. Nothing in this report comes from the publisher hence its futile to take them to court.
In their report, the website hasn’t accused Trump of anything. From a different legal prospective, the people directly vindicated in this publication are the Russian government and the opposition. According to BuzzFeed, the information was prepared by the opposition in a bid trash Trump during the campaign with their source being the Russian government. In the dossier, FSB is mentioned and a number of Russian officials have been quoted and named. These are the victims of these publications and if anyone is in a place to question the legality of these documents they should. At the moment, it’s alleged as compromising information by the Russia on Trump hence if Trump has a problem with anyone; it should be the Russians for having compromising information on him, invading his privacy and airing his sexual obscenities to the entire world. If the file was prepared by the opposition in their attempt to sneer dirt on their opponent, the Trump should take it up with the Hillary team and not the media because BuzzFeed reporting on this story is just them doing their jobs.
Abraham Keller, N. V. (2014). Research exercise: Analyzing the Actual Malice Standard in New York and Virginia Defamation Cases.
Cornell.edu. (2015). Libel. Retrieved 2017, from Legal Information Institute : https://www.law.cornell.edu/wex/libel
Edmondson, A. (2017). Rearticulating New York Times v. Sullivan as a Social Duty to Journalists. Journalism Studies 18.1 , 86-101.
Judith Haydel, H. B. (2015). Actual Malice. The Encyclopedia of Civil Liberties in America, 7.
Ken Bensinger, M. E. (2016, Jan 10). These Reports Allege Trump Has Deep Ties To Russia. BuzzFeed News.
OYez.org. (2017). The New York Times Company V. Sulivan. Retrieved 26 2017, from https://www.oyez.org/cases/1963/39
Sack, R. D. (2014). New York Times Co. v. Sullivan-50-Year Afterwords. Alaska LAw Review 66, 273.
US Courts . (1964, March 9). New York Times v. Sullivan Podcast. Retrieved January 26, 2017, from US Courts : http://www.uscourts.gov/about-federal-courts/educational-resources/supreme-court-landmarks/new-york-times-v-sullivan-podcast
Youm, K. H. (2014). The “Actual Malice” of New York Times Co. v. Sullivan: A Free Speech Touchstone in a Global Century. Communication Law and Policy 19.2, 185-210.