It is notoriously difficult for a public official in America to win a defamation lawsuit.
To win damages, it’s not enough for them to prove that a news story about them was false – instead they have to prove “actual malice”, meaning the outlet was either wildly reckless or deliberately got it wrong. Even if they manage to show that, they have to prove the story caused them serious financial or reputational harm.
Donald Trump, though, has advantages not available to most defamation claimants in terms of money and power – and that’s the situation the BBC is having to deal with in the US President’s $10bn lawsuit against Panorama, over its special episode on the January 6 riots.
Trump has secured an early victory in the case, after Florida judge Jeffrey T Kuntz partially denied the BBC’s motion to dismiss, meaning it will proceed to a full trial. The President characteristically celebrated this procedural victory as if it represented winning the case in its entirety.
“A Huge Victory against Fake News BBC, a terrible abuser of the truth, just handed down by highly respected District Court Judge, Jeffrey T. Kuntz, of the Southern District of Florida,” Trump posted to Truth Social, before promising to “continue fighting against, and defeating, all of those who try to deceive the American People!”
It is not hard to see why Trump might want a win after a week of brutal midterm election results, and the dawning reality that the next two years of his presidency are going to be much harder for him than what went before. But the 80-year-old President might soon learn that this win is more trouble than it’s worth.
Trump will now be deposed by the BBC’s lawyers over his actions around the time his supporters attacked the Capitol on 6 January, 2021, in an effort to overturn the presidential election result (Photo: Lev Radin/Pacific Press/LightRocket)At the centre of this case is the BBC’s decision to edit Trump’s remarks at a rally shortly before his supporters stormed the US Capitol in an effort to overturn Joe Biden’s win in the 2020 presidential election. The BBC cut down the President’s comments in a way Trump’s legal team claim falsely implies he incited the riots.
The Panorama clip shows him saying: “We’re going to walk down to the Capitol… and I’ll be there with you. And we fight. We fight like hell.”
In fact, he said: “We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women.”
More than 50 minutes later, he said: “And we fight. We fight like hell.”
The BBC acknowledges that the edit was a mistake, but says it was not malicious or reckless, and did not give an overall false impression of Trump’s role in the events of the day, nor did it cause Trump much damage.
The case will now continue, in front of the US and international media. There are many hurdles Trump still has to clear before he gets an actual victory over the BBC, not least demonstrating how a programme that was never broadcast in the USA caused him substantial damage – especially when he went on to win the 2024 election, and substantially increase his net worth.
But that might soon be the least of Trump’s problems in connection to this case – since the question of whether or not Trump played a role in inciting the riots will be essential to the BBC’s defence.
That means that over the next year, just as Trump is doing battle with a Democrat-controlled Congress and his Republican Party is trying to prepare a convincing argument for the presidency in 2028, the media will be full of reporting about what Trump and his team did and said on and around January 6, 2021.
A previous ruling ordered that Trump should be deposed by BBC lawyers by 11 December, meaning the President will have to sit down and answer hours of hostile questioning, under oath. The BBC’s legal team have subpoenaed thousands of pages of documents, and will be questioning numerous other witnesses about the events of that day.
There is an American saying: play stupid games, win stupid prizes. Trump enjoyed some easy early victories over US television networks in defamation cases, when their corporate owners agreed to settlements of a few million dollars.
The BBC is different: as a broadcaster owned by the British public, handing licence fee money to Trump instead of defending its journalism could pose an existential crisis for the corporation. As a British broadcaster, rather than an American corporation, it is less subject to political pressure from the Trump White House.
Every penny the BBC spends fighting this case is money from the British public, which should otherwise be going on producing programmes. But it is likely that many licence fee payers would rather see their money spent on fighting Trump than paying him off.
Trump is celebrating his “win” in Florida, but he could quickly find this victory to be a pyrrhic one. His actions before, during and after the appalling assault on democracy of Jan 6 will be looked at under a microscope.
In the days leading up to the storming of the Capitol, Trump insisted the election results were fraudulent and in his address to thousands of his supporters on the National Mall in Washington just before the riots began, Trump called Biden an “illegitimate president” and said: “If you don’t fight like hell you’re not going to have a country anymore.”
Trump’s lawyers have argued his use of the word “fight” was figurative, and noted that he told them to march to the Capitol “peacefully and patriotically”.
Media outlets across the world will now gleefully report every detail of the case, at a time when Trump is already bleeding. If that’s what a win looks like, most of us would probably rather lose.
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