The biggest law story of the week was not really about the law.
This was President Trump’s defamation claim for one or more billion dollars against the BBC for a misleadingly edited version of his January 6 speech. It brought out lawyers and non-lawyers in force to give advice.
Alan Rusbridger, the former editor of the Guardian and now editor of Prospect, was one of the non-lawyers. He proposed a four-word message that the BBC should send the president: ‘See you in court’.
Alternatively, he proposed the coded response occasionally used by Private Eye: ‘We refer you to the reply given in the case of Arkell v Pressdram.’ In that case, the magazine considered the claim so outrageous that it replied:
'We note that Mr Arkell’s attitude to damages will be governed by the nature of our reply and would therefore be grateful if you could inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off.’
David Allen Green, who writes for the Financial Times and New Statesman, is a real lawyer, and a defamation lawyer at that (a rare breed). He had his own version of the letter that he advised the BBC to send.
The following quote gives a flavour:
‘You state in your letter three times that your client has suffered “overwhelming financial and reputational harm”. This is presumably on the Beetlejuice principle that if you say something three times it somehow appears. But your letter contains no evidence of either financial or reputational harm, let alone both. And your letter certainly fails to provide evidence of any harm being “overwhelming”. Given that your client was actually re-elected to the presidency within days of this programme being shown (in the United Kingdom but not the United States) there is no obvious harm that was suffered by your client.’
Mark Stephens, another media lawyer with defamation experience, seized on the recent spat between President Trump and his former chief admirer, Marjorie Taylor Green, because of the latter’s support for the release of the Epstein files. President Trump called her Marjorie ‘Traitor’ Greene and ‘a ranting Lunatic’, which Taylor Greene says has led to threats against her ‘egged on by the most powerful man in the world’.
Mark Stephens commented:
‘BBC lawyers take note in terms of a reputation worth defending. This is definitely not "beautiful" nor "calming’".
Of course, not everyone sees themselves as advising the BBC. The Daily Telegraph, which broke the original story of the misleading edit, had an article headed ‘This is how Trump can sue the BBC and make them pay’.
Inevitably, self-flagellating BBC journalists published material on the BBC website giving advice to their own organisation, based on interviews with US experts. Here, many of the hurdles are outlined: the one year deadline for suing in the UK has passed; the programme in question was not available in Florida, where Trump is likely to sue; in terms of damage done, he won the presidency after the programme went out and his businesses continued to make money afterwards (the David Allen Green point above); the BBC must be shown to have acted with actual malice; and so on.
Recently, President Trump has sued Disney and ABC News over a rape allegation (settled; he had been found previously liable for defamation and sexual abuse, but not rape, and legal experts say that the organisations settled because of other business interests). He has filed a $10 billion claim against the Wall Street Journal for publishing the lewd birthday card allegedly sent by him to Jeffrey Epstein for his 50th birthday, and a $15 billion suit against the New York Times for engaging ‘in a decades long method of lying about your Favorite President (ME!), my family, business, the America First Movement, MAGA, and our Nation as a whole’. He’s also in the process of suing board members of the Pulitzer Prize Committee for giving the New York Times and the Washington Post a prize.
I am not a defamation lawyer, and certainly not an expert in the US system. I note that Florida comes 32 out of 39 US states in the latest rankings of US state anti-SLAPP laws (SLAPP is strategic litigation against public participation) - at least Florida has such a law, 12 states do not. I have no clue whether the Trump case against the BBC would ever qualify as a SLAPP, but its qualification as one is not really my point.
Rather, it is obvious that his case has strong hallmarks of a SLAPP: litigation against media organisations like confetti at a wedding; giant resources, both in terms of finances and political power, to club others to silence; and an intention to chill public debate and criticism through the threat of inflated damages.
Of course the BBC must defend itself in law (and of course apologise – as it has - for its misleading edit). But this is not really about the law. It is more about the use of overwhelming resources to intimidate public debate about a public figure.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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