President Donald Trump already has two scalps in his war with the BBC, with the resignations of Director General Tim Davie and the Corporation’s News chief executive Deborah Turness.
He is now wielding his weapon of choice – the threat of a megabucks lawsuit – in a bid to force the BBC to apologise and compensate him for the October 2024 Panorama episode.
But if he does go through with the threat and sues for $1 billion, Trump would face a series of hurdles to an attempt to successfully force a payout from the BBC.
It seems far more likely that the BBC will yield to the US President’s demands, to try to draw a line under the scandal instead of becoming locked in a protracted, expensive, and potentially ruinous legal battle.
Where to sue?
Trump set out his threat to sue in a letter to the BBC on Sunday, which called for an apology and a payout that would "appropriately compensate" the President.
The Panorama broadcast passed without significant controversy when it first aired more than a year ago. But the scandal burst into life last week when The Telegraph published a leaked memo by Michael Prescott, a former editorial standards adviser to the broadcaster.
In the internal memo, he highlighted issues with the BBC’s coverage of the Gaza conflict, and also mentioned the way footage of Trump had been edited for the hour-long Panorama special ‘Trump: A Second Chance?’.
The programme, broadcast just before last year’s US Presidential election, had spliced together clips of Trump’s speech before the Capitol building was stormed on January 6, 2021.
In the speech, Trump told his supporters: "We're going to walk down to the Capitol, and we're going to cheer on our brave senators and congressmen and women." But the first part of the quote was put together in the programme with another comment that they should “fight like hell”, even though that was said nearly an hour later in Trump’s lengthy address.
The first question for legal experts is where would Trump bring a lawsuit, if he does push the button on a legal war with the BBC.
His letter, billed as a “demand to retract false and defamatory statements”, came from Trump’s Florida-based attorney Alejandro Brito, and accused the BBC of making "false, defamatory, disparaging, misleading, and inflammatory statements".
“Failure to comply will leave President Trump with no choice but to pursue any and all legal rights and remedies available to recover damages for the overwhelming financial and reputational harm that the BBC has caused him to suffer”.
The letter also points out that the BBC broadcast did not include Trump saying: "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard."
A demand for deletion of the programme and any copies and records, as well as the apology and compensation, was made with a deadline of 5pm on Friday.
If they move to the next step, the decision for Trump’s team is whether to file a libel action in Florida, or bring proceedings at the High Court in London.
Iain Wilson, managing partner of Brett Wilson LLP, said the BBC “could also argue that a Florida court should not be exercising jurisdiction over a programme that was not directed at a United States audience”.
Jessica Sarwat, from Stokoe Partnership Solicitors, agrees that a putative case brought in the US “would face complex jurisdictional issues as the BBC is a UK broadcaster”, and this would likely be the first hurdle of a court process.
Isn’t it too late?
The Panorama documentary was first broadcast on October 28, 2024, which means it is more than a year since the alleged defamation took place.
In the UK, legal experts say a libel case mounted now would be “out of time” – meaning a judge could strike out the case before even hearing its merits.
Media law expert David Banks posted on social media that repetition of the broadcast – the Panorama show was until recently still available on iPlayer – does not help Trump to overcome that difficulty.
“The fact it is still available online does not extend this limit”, he wrote. “The claimant has to work to the first date of broadcast.”
This is why legal proceedings being commenced in the courts of Florida is a more attractive avenue for Trump.
The State has a two-year time limit on libel claims, which means the deadline for Trump starting a lawsuit would be in October next year.
The time limits exist in defamation courts to avoid someone facing endless legal actions over a single statement.
What’s it got to do with Florida?
President Trump’s personal residence, Mar a Lago, is situated in Florida and so it is the natural area for him to bring personal grievances.
But a libel action would only be successful if it could first be proven that the contentious statement was published to a relevant third party.
The BBC’s iPlayer service is not available outside the UK, but the Corporation’s shows are broadcast in the US on BBC America.
Evidence would have to be collected that the programme went out and was watched, in order to demonstrate the basis of a case.
If Trump’s lawsuit were to proceed in the UK, it would be much simpler to establish publication, as the show has been available on iPlayer for much of the past year and was first shown at 8pm on BBC One.
What damage was done?
Trump’s lawyer put his case in the strongest possible terms, alleging the Panorama broadcast has caused sizeable damage to his reputation and financial standing.
It is said he is mulling over a $1 billion lawsuit, intended to show the scale of the case.
Trump is also looking for an apology. BBC chair Samir Shah wrote to MPs to say the splicing of the clips had been an “error of judgement”, adding: “We accept that the way the speech was edited did give the impression of a direct call for violent action.”
In the UK, it is commonplace after a threat of legal action for a settlement to be reached, which usually involves a public apology and retraction of offending comments.
If legal action is started, that process happens in a public hearing at the High Court, with an agreement between the parties how the apology and remedies should be carried out.
If there is not a settlement, however, part of Trump’s case would be to show the effects on him of the broadcast.
While the splicing of the two clips would initially be considered an accuracy point, Trump’s case is that what was broadcast was libellous.
It amounts to libel if what was broadcast is proven to be “likely to lower the person in the estimation of right thinking people”, exposed Trump “hatred, contempt or ridicule”, or it “intends to make a person be shunned or avoided”.
Iain Wilson says under US law Trump and other public figures who bring libel actions “must show 'actual malice' to succeed”.
“This means proving that the broadcaster either knew the material was false or acted with reckless disregard for the truth.
“That argument might be available if it could be shown that the footage was deliberately edited to fit a particular narrative.
If the legal battle went ahead to a full libel trial, the BBC could mount an argument that while the publication was badly edited – as it has already accepted – it did not necessarily damage Trump’s standing.
Many British publications wrote as a matter of fact after the January 6 insurrection that the events of the day had been “incited” by Trump himself, in the same speech that featured in the Panorama documentary. No legal action flowed as a result of those publications, and it could be argued that the BBC’s programme did not materially alter the public perception of the US President.
It is also open to a judge to rule that someone has been libelled, but to award no damages because there has not been an impact.
Iain Wilson explained that Trump may also be called on to prove that the “defamatory sting” was actually false.
“Even if the editing was selective, the BBC could argue that the overall meaning viewers took from the broadcast was substantially true”, he said.
“The case will turn on how the court defines the defamatory imputation. If it decides that the allegation was broadly that Mr Trump’s speech contributed to the January 6 violence, that could be defensible and may set the stage for another high-profile Trump hearing.”
Is this going to happen?
Leaders at the BBC resigned as a result of the handling of the crisis, as the Corporation allowed pressure to build while not offering fulsome apologies.
Now, the apologies have been offered by the BBC Chair and it is considering how to respond to Trump’s threats.
The US President is already locked into a $15 billion lawsuit against the New York Times and its reporters, over the publication of stories about a book centred on his business dealings.
Trump tried and failed to sue CNN for $475m in 2022, he settled lawsuits against ABC and CBS last year, and he has filed a case against the publishers of the Wall Street Journal over the publication of a letter he is alleged to have sent to Jeffrey Epstein.
Trump has his cheerleaders in the UK and the BBC has its enemies, but some will be troubled by the sight of a foreign leader waging war on the free press in his own country and now expanding that to Britain.
If this case goes ahead to a full lawsuit, it has the potential to drag on for years. US courts can award punitive damages which can be huge, while UK libel awards are usually capped at £350,000.
The BBC will likely try to settle the matter now to avoid further damage to the Corporation. The prospect of cross-examining Trump himself in court on what he intended with his January 6 speech may be enticing to some. But it would be an expensive journey to reach that point, and a huge gamble to take on a fight it may not win.
Daniel Astaire, managing partner at Grosvenor Law, added that Trump could open up another front under copyright law, claiming “infringement of a person’s moral rights”.
He added: “The creation of a doctored video could pave the way for malicious falsehood, if the video contains false statements that result in quantifiable financial loss. If Trump pursues this, he must establish that the creation of the video was done maliciously."
Jessica Sarwat suggested Trump’s lawsuit “looks more symbolic than legally sustainable”.
“Trump’s threat has made headlines, but a billion-dollar defamation case in the UK is an uphill climb - particularly across borders.
"In the UK, general damages awards for libel cases are capped at around £350,000 - much lower than the billion-dollar figures seen in the US - and, even if a US court agreed to hear the case, it would face complex jurisdictional issues as the BBC is a UK broadcaster.
“In addition, the limitation period for any libel claim in the UK - which is usually one year from the date of the publication - has now passed.”
