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A $US10 billion (AU$14.2 billion) defamation case brought by Donald Trump against the BBC over a program broadcast after the January 6, 2021 riots reached a make-or-break point this week when the judge ordered the US president to turn up and be examined before December 11.
Trump is suing the UK broadcaster over an episode of current affairs program Panorama that edited together two different sections of a speech he gave before the riot at the US Capitol. The lawsuit accuses the BBC of “deceptively doctoring” the speech. The broadcaster has already apologised for the error, admitting that it gave “the mistaken impression that Trump made a direct call for violent action”.
In commencing this action, perhaps Trump was misled by the $US86.5 million ($123 million) paid to him by Paramount Global and other media and tech companies, including ABC, CBS and Facebook, pretending the vast amounts were genuine defamation settlements, and believed the BBC would fall into line.
So far as I know, Australia has had only one such case, in 1986 – when businessman Alan Bond, having acquired Kerry Packer’s Channel 9, paid then-Queensland premier Joh Bjelke-Petersen a $400,000 bribe, successfully passing it off as an out-of-court defamation case settlement from the Packer days. Even the barristers’ chambers cat knew the case was worth $50,000 tops, and it was no more or less than a bribe for Joh’s protection of his business operations in Queensland.
The judge here – Enjolique Lett – ruled that Trump’s persistent failure to meet her case management orders will no longer be tolerated, and that he must give sworn evidence even before the trial starts, in a deposition by the BBC’s legal team. It appears, then, that Trump must either attend and answer their questions, or drop the matter.
Which might just be the biggest TACO (Trump Always Chickens Out) of them all. Defamation lawyers in London and New York were nonplussed from the very beginning of the litigation, seeing it as always doomed to fail. And it was. A man whose name is mud takes on a revered titan of British journalism that courteously said “Sorry!” for a bit of a blunder – one that cost the CEO his job. It has loomed as the biggest such case ever litigated, despite it looking unwinnable, and why did he even start it? Does he really need damages from the court? Getting the edit wrong on his calls for the insurrectionists to “fight” surely pales against his insouciant embrace of obscenity and his defiant boasting of sexual assaults. He didn’t sue over those.
Why didn’t Trump sue in London? This was a foreign television show never broadcast in the US, making it seem impossible for his lawyers to gather evidence making the BBC liable for any extraterritorial publication of the single Panorama program. And as to vindication: in the UK, damages for defamation causing reputational injury would not exceed a piddling £300,000, although they are not capped. Hence it has to be a Florida judge and jury. The choice of venue most inconveniently leaves the plaintiff with the apparently insurmountable onus of proving not just that the BBC published the show in Florida (when it didn’t), but also persuading the judge not to apply the UK libel law to a publication made in Britain for a British audience, by a British corporation.
At its strongest, the gist of the Trump case is that the editing of the speech he made on January 6 was actionable because it carried the charge that he called on the MAGA crowd to take violent action at the Capitol. Further, if that imputation is established on the balance of probabilities, he’ll have to defeat the defence that he is so notoriously a person of bad character (courts have judged him a fraud and a sexual offender to a civil standard) that the imputed words didn’t further damage his standing in the estimation of right-thinking people. In other words, the president of the US of A would be wasting his time trying to prove that his good name needs vindication. Defamation encompasses slander and libel, although libel is published in permanent form.
Back to Florida, and a judge he didn’t appoint. If Trump meets all his pre-trial obligations, and the case proceeds on February 15 next year as set down, he will have to overcome a full suite of defences, perhaps under British law, perhaps American, rebutting everything from the “public figure” test created in NY Times v Sullivan (certainly not British law, and requires actual malice motivating the libel, not sloppy journalism), substantial truth, and very complex free speech arguments of the “fair comment” kind. And triviality. He may well be advised to retain two teams of specialist counsel. Talk about a lawyers’ picnic.
To lawyers, the riveting denouement of the litigation will be its eventual disposal by Trump’s Supreme Court lickspittles, although – to be fair – some seem to be working to assuage their shame, now that his character is unquestionably indefensible. Because the US Supreme Court is where this will end if it is ever started. To this lawyer, the hard thing to understand is how the BBC’s American lawyers are fighting the matter. US lawyers are the ones who take 45 per cent of the verdict moneys as their fee.
But the parties’ strategy and legal tactics? The BBC’s early application to strike the case out for lack of jurisdiction failed when the judge ordered that it should continue at least through its discovery stages, including Trump’s deposition. Puzzling, when it can’t have been in genuine dispute that no BBC publication took place within any American jurisdiction. The BBC’s smartest tactic resulted in Trump dropping his economic loss claims – his own and his companies’ – rather than open the books. So he’s left seeking damages for only his reputational injuries. And obviously, the defendant will call evidence not so much as to Trump’s character, but of what people think of him. His reputation. And the only people whose evidence on reputation can be received are those proved to have watched the program. It gets sillier.
Stuart Littlemore, KC, is a barrister and former ABC journalist. He was the founding host of Media Watch .
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