Why Donald Trump’s $10bn lawsuit against the BBC is doomed to fail

Donald Trump’s lawsuit against the BBC has a “fundamental flaw” and would have to overcome a number of legal hurdles to be successful in the US, according to a leading media lawyer.

The US president has filed a $10bn defamation claim against the broadcaster over an edit of a Panorama documentary a week before the 2024 US election, which his lawyers argue “was false and defamatory”.

They also claimed “the BBC intentionally and maliciously sought to fully mislead its viewers around the world”. In a statement, the BBC said it will be defending the case.

The programme is accused of misleading viewers by editing a speech Trump delivered on 6 January 2021.

The broadcaster spliced two distinct clips from Trump’s speech that day, creating the impression that he instructed a crowd: “We’re going to walk down to the Capitol … and I’ll be there with you. And we fight. We fight like hell.”

The controversy, first revealed by The Telegraph last month, led to a full-blown crisis at the corporation and the resignations of the BBC’s director general Tim Davie and CEO of BBC News Deborah Turness.

The BBC said documents filed by Trump’s lawyers late on Monday in a federal court in Miami asked for $5bn (£3.7bn) in damages for defamation, as well as the same amount for a claim of violating trade practices, for a total of $10bn.

A BBC spokesperson said: “As we have made clear previously, we will be defending this case. We are not going to make further comment on ongoing legal proceedings.”

International media lawyer Mark Stephens from London firm Howard Kennedy believes there are aspects of the claim, which the president will struggle to prove.

President Trump cannot sue the BBC in a British court as he missed the deadline to do so – defamation claims in the UK have a statute of limitations of one year.

The case has been filed in a Florida court, but Mr Stephens believes this creates the “fundamental flaw” of the president’s case – jurisdiction.

He told The Independent: “His lawyers missed the UK deadline by two weeks. So he then has to find somewhere else it was published – that’s why they spend the first few pages of the lawsuit talking about jurisdiction.

“What they say is that American courts have jurisdiction when people are from those jurisdictions. President Trump lives in Florida, so he can bring a case.

“The problem you’ve got is they haven’t entertained whether the libel happened in Florida and they haven’t proved that.”

The Florida court does not have jurisdiction to hear a claim concerning material that was not broadcast in the US president Trump must prove that people in Florida could have viewed the Panorama episode.

Mr Stephens explained: “The jurisdiction is the magic element here. President Trump and his lawyers have to prove the libel of the Panorama programme was firstly published in the USA, ideally in Florida, secondly that somebody saw it and thirdly that the people who saw it think worse of him as a consequence of having seen the programme.

“They try to address this. They say that people on Britbox (streaming platform) in Florida might have been able to watch it and anyone in Florida using a VPN – because it was geo-blocked from the USA – might have been able to watch it.”

He added: “What is notable in its absence from the lawsuit, in all its 87 pages, is any evidence that it was published to anybody and anybody who watched it thought less of Donald Trump.

“That’s the burden that the claimant – Donald Trump – has and his lawyers haven’t discharged.”

US libel law differs from that in the UK, as the burden is on the claimant rather than the defendant. The claimant must prove the claim is false, is defamatory and has been published or broadcast.

Mr Stephens believes this poses more hurdles for the president.

He said: “The second [flaw] is essentially there’s an absence of actual malice. In order to demonstrate that, President Trump’s lawyers have to show that the BBC acted, knowing the truth, and deliberately turned their eyes away from it, and put in a deliberate falsehood.

“That isn’t a conceivable element, I think. They haven’t discharged the burden of that in the complaint as far as I can see.

“The president is a public figure and he has to show (proof of) actual malice – that is that the BBC knew it was wrong and didn’t care.

“Practically speaking, you’re hunting for very specific evidence of demonstrable, material harm and the proof BBC knew it was wrong or didn’t care whether it was wrong.

“None of that appears in the claim, and they are essential elements for his lawyers to prove in a successful claim.”

The BBC is committed to fighting the case. As it has been filed, the next stage would it being served to the BBC, but Mr Stephens believes the corporation could have parts of it struck out, enabling it to save on legal costs.

He said: “If it’s struck out before trial, I think it [litigation] will cost the BBC around $200,000.

“If it goes to trial, it will cost around $1m, maybe a little bit more. I’ve seen estimates saying around tens of millions, but that’s rubbish – the evidence is quite straightforward.”