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The BBC faces a critical juncture following the filing of a $5 billion lawsuit by former US President Donald Trump. The corporation, which initially may have hoped the threat of legal action would not materialize, now confronts a stark reality.
Current indications suggest the BBC is preparing to contest the suit, evaluating its strategic options.
“We will be defending this case,” the BBC reiterated after the lawsuit was initiated, citing alleged defamation stemming from the editing of Trump’s January 6, 2021, speech in a Panorama documentary.
The question now is what are the potential advantages and disadvantages of this stance, and is the BBC likely to alter its approach?
Sources both within and outside the BBC have indicated a strong sentiment that the corporation must defend its journalistic integrity against what some perceive as a pattern of legal intimidation employed by the former president against US media outlets.
One potential benefit, particularly if the BBC is confident in its legal position, is the opportunity to demonstrate its independence and resilience in the face of substantial threats.
From a legal standpoint, the BBC believes it has a strong case.
Trump’s legal arguments appear to hinge on two primary assertions: jurisdiction and malice.
The lawsuit, filed in Florida, requires Trump to demonstrate that audiences in the state viewed the Panorama program, thereby causing him demonstrable harm.
The filing alleges that viewers accessed the program via virtual private networks (VPNs). However, questions remain as to whether this occurred on a scale sufficient to cause reputational damage, and whether the BBC can be held liable for unauthorized user behavior.
Claims that a Canadian company, Blue Ant Media, distributed the documentary in the US could pose a greater challenge if substantiated.
Blue Ant Media has confirmed that it held distribution rights but asserted that “none of Blue Ant’s buyers have aired it in the US.” A spokesperson added that the international version of the Panorama episode did not include the clip of Trump’s speech, as the program was edited for length.
This leaves open the question of whether viewers accessed the Panorama program through a subscription to Britbox, as has also been alleged. Britbox has yet to respond to requests for comment.
The BBC maintains that the program was not broadcast in the US.
Furthermore, Trump’s case alleges malice, asserting that the BBC intended to harm him by publishing the documentary a week before the election “with the express intent of interfering with it and trying to undermine President Trump’s odds of winning re-election.”
The documentary appeared to present an assessment of Trump’s most ardent supporters and whether claims about him, including those related to January 6th, have diminished their support.
The segment featuring Trump’s speech lasted 12 seconds within a 57-minute program. The BBC has acknowledged that the edit was an unintentional mistake. However, the lawsuit argues that the splicing of two parts of the speech together indicates intentionality.
Trump’s case also cites other instances that he claims demonstrate a pattern of negative reporting on him by the BBC. The filing asserts that “the BBC had no regard for the truth about President Trump” and alleges that the BBC sought “to craft as one-sided an impression and narrative against Trump as possible.”
The BBC denies these claims, setting the stage for a potentially significant legal battle.
Another potential upside of contesting the lawsuit, although the BBC would likely not acknowledge it, is the potential to strengthen its brand among a segment of US consumers. The corporation is investing heavily in its US streaming app. A high-profile legal battle with Trump could encourage subscriptions, although this remains a high-risk strategy.
A clear downside of fighting the lawsuit is the associated cost. Chris Ruddy, a friend and ally of Trump and chief executive of Newsmax, estimated that going to court could cost $50-100 million, while a settlement might cost $10 million.
Using funds from license fee payers to settle with Trump would be a difficult proposition for the BBC. However, spending millions to fight the case in court could also draw criticism for squandering public funds.
The BBC has insurance, but the extent of its coverage remains unclear.
Another concern is the potential distraction from crucial negotiations with the government regarding the next BBC Charter, which will define the corporation’s future beyond 2027.
Amid leadership transitions, including the resignations of the director general and the CEO of news, the BBC must navigate what is arguably the most significant legal challenge in its history, diverting resources from strategic priorities.
The nature of “lawfare” is that it focuses as much on the burden of fighting a case as on the outcome itself.
Trump has little incentive to back down. A dispute with the BBC serves his interests, particularly given the BBC’s acknowledgment of an error. He appears intent on demonstrating bias beyond the single TV edit.
The question remains how much of the BBC’s resources will be required to fight the case.
In past cases, some media companies have opted to settle with Trump, even when legal experts believed they could win. Ultimately, they concluded that the drawbacks of a prolonged legal battle outweighed the potential benefits.
Other US media outlets, including The Wall Street Journal and The New York Times, are challenging similar lawsuits, characterizing them as part of a broader attack on media freedom.
However, the BBC faces a unique calculus, given its admission of error.
One possibility is whether the BBC asks the prime minister to intervene and Sir Keir Starmer calls Trump and asks the president to be magnanimous?
The current government supports the BBC. Despite recent controversies, the culture secretary praised the corporation as being vital for the health of democracy when launching the green paper into charter renewal.
However, Downing Street has not signaled that the PM would use any leverage he has with Trump to persuade him to back down.
The next step is for the BBC to respond to the filing. While a detailed response is not immediately required, failure to respond could result in a default judgment. While the lawsuit lacks a definitive “smoking gun,” these are precarious circumstances, and the BBC will be weighing its options carefully.
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