JONATHAN TURLEY

Kate and Gerry McCann, parents of missing Madeleine McCann, have accepted £550,000 ($1.1 million) in damages for libel and front page apologies from the Daily Express and the Daily Star newspapers for their coverage suggesting that they killed Madeleine.

The newspapers admitted that was no evidence to support articles alleging the parents had a role in their daughter’s disappearance or death. “Kate and Gerry are completely innocent of any involvement in their daughter’s disappearance,” the newspapers published in their apologies.

It is an important win in Britain where it is difficult to sue for libel due to the “English Rule,” requiring the loser in such cases to pay the fees of the opposing party. The result is that defamation is more common in the country where tabloid journalism is the rage.

In the United States, the success of the lawsuit would depend on a showing of actual malice under the New York Times v. Sullivan rule due to the status of the McCanns as “public figures.” Yet, even under this higher standard, they could likely prove knowing falsehood or reckless disregard in these circumstances. U.S. newspapers reported on the allegations, but largely on the fact that they were publicly accused rather than pseudo- investigative stories.

In fairness to the English, some citizens like the recently departed Richard Jewell, here, had to struggle to clear his name against the media and the government in the United States under similar circumstances. As noted here, the fair reporting privilege can be a barrier to disclosing sources of newspapers when based on government sources. Notably, anthrax suspect Steven Hatfill is fighting to disclose the same type of government sources, here. Yet, despite problems in such U.S. cases, the English rule is a major deterrent to lawsuit in a wide array of tort cases in that country.

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