Trump needs to prove ‘serious harm’ to pursue BBC legal claim in UK, experts say

Donald Trump would have to prove that the BBC caused him “serious harm” in order to successfully sue the broadcaster in the UK for what he says are “false” statements made about him in a documentary, legal experts have said.

The US president has threatened legal action if the corporation does not retract the “defamatory” statements made about him in the Panorama documentary.

Mr Trump threatened a billion-dollar claim after a report from Michael Prescott, a former external adviser to the BBC’s editorial standards committee, raised concerns that a speech he made before the attack on the US Capitol on January 6 2021 had been selectively edited by the BBC.

The legal letter, from Mr Trump’s lawyer Alejandro Brito, demands that “false, defamatory, disparaging, and inflammatory statements” made about Mr Trump be retracted immediately.

He plans to issue the proceedings under Florida law.

On Tuesday, legal experts told the PA news agency that lawyers for the US president would have to prove the broadcast caused his reputation serious harm, and suggested that it may even be too late to bring a claim at the High Court in London.

Daniel Astaire, managing partner at Grosvenor Law, said: “Trump must show that the video caused serious harm to his reputation and then quantify this damage.

“The key factor is whether the reasonable viewer would believe the video to be true and not realise it has been falsified – the meaning of the statement, as conveyed by the video, will be crucial in determining whether it is defamatory.

“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.”

Time limit

He added that the usual time limit for lodging a defamation claim is one year.

Tom Rudkin, partner at Farrer & Co, said: “The starting point, given the Panorama episode was first broadcast in October, is that the claim would be out of time as the limitation period is one year.”

Iain Wilson, managing partner at Brett Wilson LLP, said: “He would almost certainly be out of time.

“Under English law, defamation claims must be brought within one year of the date of publication or broadcast.”

The experts also said that the case potentially being brought in the US has its own complications.

Mr Wilson said: “The BBC and its lawyers will be carefully considering the prospects of successfully defending the claim in a Floridian court.

“Separately, careful thought is no doubt being given to the wider PR issues in play – including pressure from home and abroad – to make a meaningful apology to Mr Trump.

“My advice would be to try to close the matter down, apologise and make an open offer to pay a sum of damages to charity.

“Even if the BBC feel they can defend the claim, there is a risk that those on the right will further seek to exploit this crisis and try to turn it into an existential issue for the BBC.”

Liabilities 

Dominic Crossley, head of dispute resolution at the law firm Payne Hicks Beach, said: “The BBC lawyers will be scrambling to consider its potential liabilities in the UK and US, and any jurisdictional challenges it may have to a US claim.

“If Trump brought a claim in the US he would have to overcome the requirement of proving malice/recklessness, which is a huge challenge, although the argument may bring into play the bias allegations that have stalked the BBC in recent weeks.

“The concern the BBC will have about US proceedings is the potential financial consequences of losing: way beyond anything a UK court can award.

“In this context it seems likely that they will be considering how they can make a prominent correction and apology that diminishes Trump’s wrath and makes a claim less attractive for his legal team.”