Self-evidently, the BBC has a big decision to make. If it hoped the US president might not follow through on his threat to sue, the reality check has arrived.
Now it is about gaming out the options, but current indications are that it plans to fight.
“We will be defending this case”, the BBC repeated after the $5bn (£3.7bn) lawsuit was filed over an edit of Donald Trump’s 6 January 2021 speech in a Panorama documentary.
But what are the pros and cons of that stance – and will it change its position?
The positives of the BBC fighting the case
Many, both inside and outside the BBC, have told me the BBC has to fight. It has to defend its journalism against a litigious president who, some claim, has been using legal action against US media companies to cow them into submission.
So one positive – particularly if the BBC is confident it would win – is to take on Trump and show the world it is not afraid of the president and his multi-billion dollar threats.
Legally, the BBC considers itself on good ground.
Trump’s case appears to rely on two main points – jurisdiction and malice.
He is suing from Florida and needs to prove that audiences in the so-called Sunshine State saw the Panorama programme, in order to prove that it impacted him negatively.
One claim in his filing is that viewers watched via virtual private networks (or VPNs). Even if that is correct, did that happen in significant numbers to cause him reputational damage and can the BBC really be held responsible for the behaviour of unlawful users of its services?
Claims about a Canadian company called Blue Ant Media distributing the documentary in the US would be more problematic if true.
The company has since confirmed it had the rights to distribute the programme, but “none of Blue Ant’s buyers have aired it in the US, a spokesperson said. They added that the international version of the Panorama episode did not actually contain the clip of the Trump speech in question, as the programme had been cut down in a number of places for time.
If that is correct, the question remains whether audiences viewed the Panorama via a subscription to Britbox, as has also been alleged. We have not yet heard back from Britbox on that point.
The BBC is adamant that the programme was not broadcast in the US.
The president’s case also relies on a claim of malice: that the BBC intended to do him harm. He is arguing that it published the documentary one week before the election with “the express intent of interfering with it and trying to undermine President Trump’s odds of winning re-election”.
I watched the documentary. I viewed it as an assessment of the approach taken by Trump’s most fervent supporters and whether claims about him, including about 6 January, have dented their admiration.
The clip of the speech is 12 seconds, in a 57-minute programme. The BBC admits the edit was an unintentional mistake. The president’s filing argues the corporation would not have spliced two parts of his speech together unless it was intentional.
He is also relying on other examples, he claims, that show that the BBC has a history of reporting on him negatively. The filing says “the BBC had no regard for the truth about President Trump” and characterises the BBC as making an effort “to craft as one-sided an impression and narrative against Trump as possible”.
The BBC rejects this, which will make for a fascinating court debate – if it actually gets that far.
Another potential positive of fighting, though the BBC would never acknowledge it, could be that it cements its brand, at least with a section of US consumers.
The corporation is making a big play of bundling its content in the US via an app it hopes people will pay for. Would a high-profile fight with Trump make some parts of the US more likely to sign up? It is undoubtedly a high-risk strategy.
The negatives of the BBC fighting the case
Clearly one downside of fighting is that it will be costly. Chris Ruddy, a friend and ally of Trump and chief executive of the US news network Newsmax, told BBC Radio 4’s Today programme that going to court would cost $50-100m, whereas he claimed the BBC could settle for $10m.
Any suggestion of using funds from licence fee payers to pay off Trump as part of a settlement would be a difficult look for the corporation. Equally, spending millions to fight the case in court would open the BBC up to claims it had squandered precious funds.
The BBC has insurance – but we do not know what that covers. Is it the legal costs or only the settlement, and is that up to a maximum amount?
Another negative is how much it will divert the institution when top executives need to be fully focused on the negotiations with the government over the next BBC Charter, the framework for the BBC’s very existence, which is up at the end of 2027.
At a time of leadership vacancies, with the director general and the CEO of the BBC having resigned, instead of fighting for the future of the BBC’s funding model and role here in the UK, it is having to navigate what is arguably the most serious legal moment in its history. It can try to do both – but can it do them both well?
The point about “lawfare”, as it is often termed, is that it is less about the outcome and more about the toll it takes to fight.
There is no reason for Trump to back down. It suits him to pick a fight with the BBC – and the BBC has already acknowledged it made an error. He appears to want to demonstrate there is bias and it goes wider than one TV edit.
But how many hours of BBC time will have to be expended to fight the case?
If you look at some of the previous cases the president has fought, some media companies agreed to settle (including ABC for $15m and Paramount/CBS for $16m), even when legal commentators argued they could have won their cases. In the end, they took the view that the negatives outweighed the positives (although the CBS case was made more complicated by Paramount’s efforts to take over Skydance Media which needed regulatory approval).
Other US titles are fighting back, including the Wall Street Journal (WSJ) which faces a $10bn claim over a story about Trump and a note it reported he wrote to Jeffrey Epstein. The WSJ says its stories are factually accurate.
The New York Times faces a $15bn lawsuit over the president’s claims it sought to undermine his 2024 candidacy and disparage his reputation as a businessman. That paper is also fighting back – and characterises what is happening as part of a wider global attack on media freedom.
But the BBC has a different equation to calculate as it has already accepted it made a mistake.
Does the BBC have other options?
Is there a world in which the BBC asks the prime minister to intervene and Sir Keir Starmer calls Trump and asks the president to be magnanimous?
We know this Labour government backs the BBC. Despite a series of controversies and mistakes including around two Israel/Gaza documentaries and the Panorama edit, when the culture secretary launched the green paper into charter renewal on Tuesday, she was fulsome in her praise of the corporation as being vital for the health of democracy and a light on the hill in dark times.
But at a Downing Street briefing, the PM’s spokesperson was not exactly leaping at the idea that his boss would use up any leverage he might have with Trump to persuade him to back down over the BBC.
Will the case reach court?
The next stage is for the BBC to respond to the filing – not in any detail, but if it does not respond, Trump’s lawyers can ask a court to make a judgement by default. There is no definitive smoking gun in this lawsuit. But these are perilous times and, whatever it says publicly, the BBC will be weighing up its next steps with a great deal of caution.
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