The recent legal threat from US President Donald Trump against the BBC has thrust defamation law into the international spotlight. Trump’s lawyers are demanding the retraction of a Panorama documentary and seeking damages of at least $1 billion, alleging the programme contained false and defamatory statements about his role in the January 6, 2021 Capitol attack.
The case raises important questions about defamation law that businesses, media organisations and individuals in the UK should understand. Below, we have examined the key legal issues at stake.
What happened with the BBC documentary?
In October 2024, just days before the US presidential election, the BBC aired a Panorama documentary titled “Trump: A Second Chance?” The programme included edited footage of Trump’s speech from January 6, 2021, which appeared to show him directly urging supporters to “fight like hell” immediately after directing them to march to the US Capitol.
The problem? These two statements were actually made more than 50 minutes apart in the original speech. The BBC has since acknowledged this was an “error of judgement”, issued an apology and confirmed the programme will not be broadcast again. Two senior BBC executives, Director-General Tim Davie and news chief Deborah Turness, resigned following the controversy.
The legal challenges: why this case faces significant hurdles
Despite the high-profile nature of the claim and the substantial damages sought, legal experts suggest Trump faces considerable obstacles in pursuing a successful defamation case against the BBC, whether in the UK or the United States.
Jurisdictional issues in UK Courts
Under the Defamation Act 2013, UK courts have limited jurisdiction over defamation claims brought by individuals not domiciled in the UK. Section 9 of the Act requires claimants to demonstrate that England and Wales is “clearly the most appropriate place” to bring the action when considering all jurisdictions where the statement was published.
This provision was specifically introduced to combat “libel tourism” – the practice of foreign claimants using English Courts simply because of their historically claimant-friendly reputation. For Trump’s claim to proceed in UK Courts, he would need to show that England and Wales is the most suitable forum, despite:
- The documentary being primarily broadcast to UK audiences on BBC One and BBC iPlayer;
- Limited evidence of substantial publication or viewing in the United States;
- It being more difficult for Trump to demonstrate damage sustained in England and Wales; and
- The statute of limitations having expired more than a year ago for claims arising from the original broadcast.
Challenges in US Courts
Whilst the writer is not an expert in US defamation law, it is understood that, if Trump were to pursue the claim in Florida, where he resides, different but equally substantial challenges would arise. US defamation law provides robust protections for free speech under the First Amendment, requiring public figures like Trump to prove “actual malice” – that the defendant published false information with knowledge of its falsity or with reckless disregard for the truth.
Furthermore, jurisdiction could prove problematic. The Panorama programme was not officially broadcast in the United States, and BBC iPlayer is geo-restricted and unavailable to US viewers without a VPN. Trump would need to demonstrate that the programme was published in Florida and that it caused harm to his reputation among Florida residents – a significant evidential burden.
Key elements of UK defamation law
This case serves as a useful illustration of the essential elements required for a successful defamation claim in England and Wales:
The statement must be defamatory
A statement is defamatory if it tends to lower the claimant in the estimation of right-thinking members of society, causes them to be shunned or avoided, or exposes them to ridicule or contempt. The BBC has acknowledged that the edited footage gave “the impression of a direct call for violent action”, which could potentially meet this threshold.
Serious harm requirement
Since the Defamation Act 2013, claimants must demonstrate that the defamatory statement caused or is likely to cause “serious harm” to their reputation. For trading entities, this must be “serious financial loss”. This significantly raised the bar for bringing defamation claims and acts as an important filter against trivial or vexatious litigation.
Interestingly, Trump was ultimately elected President shortly after the documentary aired, which the BBC could argue demonstrates that the statement did not cause serious harm to his reputation or prospects.
Publication
The statement must have been communicated to at least one person other than the claimant. While the BBC undoubtedly published the documentary to UK audiences, demonstrating sufficient publication in any US jurisdiction could prove challenging given the programme’s geo-restrictions.
Defences available to defendants
UK law provides several important defences to defamation claims, including:
- Truth: If the defendant can prove the statement is substantially true, this provides a complete defence. However, the BBC has acknowledged that the editing was misleading, which may weaken this defence.
- Honest opinion: Previously known as fair comment, this defence protects statements recognisable as opinion rather than fact, provided they are based on true facts and honestly held.
- Publication on matter of public interest: This replaced the Reynolds defence and protects publication where the defendant reasonably believed publishing the statement was in the public interest. The BBC could potentially argue this defence, given that the documentary addressed matters of significant public interest regarding a presidential candidate.
Lessons for UK businesses and organisations
While this case involves a high-profile international figure and a major broadcaster, it offers valuable insights for any business or individual concerned about defamation:
The importance of accurate editing
For media organisations, publishers and anyone creating content, this case underscores the critical importance of editorial accuracy. Even when dealing with factual source material, how it is edited, presented and contextualised can create misleading impressions that may give rise to defamation claims.
Cross-border defamation is complex
Defamation claims involving multiple jurisdictions present complex legal challenges. The Defamation Act 2013’s jurisdictional requirements mean that international claimants cannot simply “forum shop” by choosing English courts. However, businesses operating internationally should be aware that statements published online may potentially be actionable in multiple jurisdictions.
Reputational risk vs legal risk
The BBC case demonstrates that the reputational consequences of perceived bias or editorial failings may be at least as significant as the legal risks. The resignation of senior executives and ongoing debate about BBC impartiality have arguably caused more damage than any potential legal liability.
Early action matters
When defamatory statements are published, taking prompt action is crucial. UK defamation law operates under a one-year limitation period from the date of publication (though the “single publication rule” introduced by the Defamation Act 2013 prevents claims being brought more than a year after the first publication, even for online content that remains accessible).
The broader context: media settlements
It’s worth noting that Trump has successfully secured settlements from other media organisations, including a $15 million settlement from ABC and $16 million from CBS’s parent company, Paramount. These settlements occurred despite many legal experts considering the underlying claims to have limited merit.
This demonstrates an important reality: the cost, time and reputational risk of defending defamation litigation may sometimes make settlement attractive, even when a defendant has strong legal arguments.
Comment
At Nelsons, our experienced civil litigation team advises both claimants and defendants in defamation matters. Whether you’re concerned about defamatory statements damaging your reputation or facing a potential claim, we provide clear, strategic advice tailored to your circumstances.
Our services include:
- Assessing the merits of potential defamation claims;
- Drafting pre-action correspondence and letters of claim;
- Defending defamation allegations with robust legal arguments;
- Negotiating settlements and retractions;
- Representing clients in court proceedings when necessary; and
- Advising on publication risks and editorial practices.
Defamation law requires swift action, specialist knowledge and careful strategic consideration. Early legal advice can make a significant difference to the outcome of any dispute.
How Nelsons Can Help
Kevin Modiri is a Partner in our expert Dispute Resolution team, specialising in civil disputes, insolvency, inheritance disputes, data breach claims and defamation claims.
If you’re facing a defamation issue or need advice about protecting your reputation, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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