Melania Trump should sue the Daily Mail over escort claims in the UK – she would probably win

On 16 August 2016 the Daily Mail published an article with this headline: "The racy photos and troubling questions about his wife's past that could derail Donald Trump."

The article reported a number of claims that America's First Lady had once worked for a modelling agency in New York, which also operated as an escort agency for wealthy clients.

It also alleged that members of the agency carried composite cards both for the modelling business and for the sex business, which stated whether they preferred older men and described their abilities in the bedroom.

A couple of weeks later, the Daily Mail published a further article with the stark headline: "Melania Trump: a retraction." This is the key paragraph:

"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 modelling agencies referenced in the article were engaged in these businesses, it is hereby retracted, and the Daily Mail newspaper regrets any such misinterpretation."

This was clearly not enough for the First Lady and after the dismissal of her libel action in Maryland, she is now bringing a second $150 million claim against the publisher of the Daily Mail in New York.

Yet defamation actions are nigh impossible in the US because of the First Amendment. A claimant who is a "public figure" - as Melania Trump plainly is - can only succeed in a libel action if they establish both the allegations are untrue, and that the publisher knew that they were untrue.

Melania Trump however faces far less of a challenge in the UK than she does in the US. The publishers of the Daily Mail are based in the UK, so there is no jurisdictional problem. Melania Trump undoubtedly has a reputation in the UK which UK courts would protect. The Daily Mail article certainly suggests that in her past Melania Trump may have exchanged favours for money.

Under the Defamation Act 2013, Melania Trump must also establish that the Daily Mail article has caused her reputation to suffer "serious harm" - which she would surely manage.

The first case decided under the new Defamation Act permitted a British newspaper to rely on a prompt apology and correction in seeking to establish that they had not inflicted serious harm to the reputation of the claimant in that action. That was doubtless the reason for the Daily Mail's retraction.

Mrs Trump would have great difficulty in persuading a British Judge to award her $150 million in damages. But in theory if she could establish that the Daily Mail article had caused her financial loss of that magnitude, then she could recover it in damages.

Either way, one strongly suspects that faced with an outraged Mrs Trump and the might of her husband's billions, the Daily Mail would beat a rapid retreat and agree to (say) pay a sum to charity and allow Mrs Trump the privilege of a formal statement in open court - to the effect that the allegations made against her by the newspaper are wholly without foundation.

Jonathan Coad is a specialist media lawyer and partner at Lewis Silkin LLP. He acts for both claimants and defendants.