Category: United States Law and Policy

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The headlines are eye-catching.

Other, similar front pages are here.

What is going on?

And what can be usefully said from a United Kingdom perspective about this threat by the President of the United States of America to sue our state broadcaster, the British Broadcasting Corporation?

This post is divided into three parts: (1) what is being complained about, (2) what can be said about the threat from a legal perspective, and (3) how this threat fits into he context of how President Trump uses civil litigation and threats of civil litigation.

In essence: what are the facts, what is the legal analysis, and what is the practical position.

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Let us begin.

The complaint is in respect of a Panorama programme broadcast by the BBC on 28 October 2024, which is well over a year ago.

The BBC page for the programmes is here:

You will see on that page that “this episode is not currently available”.

You will also see that dates of the broadcast:

Note that the broadcast dates are before Trump’s successful election on 5 November 2024.

And if you look carefully at that page you will also see that the programme was not made by the BBC, but by a third-party production company. This was thereby not made directly by the BBC news teams, though they would have presumably reviewed and approved the content before broadcast.

This distinction between production and broadcast is not unusual for such programmes.

There is also no evidence that the programme broadcasts were readily available in the United States:

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As regards the content complained of, the Guardian have provided this handy comparison, which you should now click on and watch:

It is a speech by President Trump on 6 January 2021.

In the Panorama edit two parts of the speech are put together so to give the impression that a single statement was made – effectively a succinct incitement to violence:

“We’re going to walk down to the Capitol and I’ll be there with you, and we fight. We fight like hell.”

In fact the first part – “We’re going to walk down to the Capitol…” – and the last part – “…and we fight. We fight like hell” – were at different parts of the same speech. Indeed, the two passages are about 54 minutes apart.

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From a journalistic and editorial perspective, the Panorama edit is misleading. It conveys the false impression that the two statements were said in one go. There is nothing in the Panorama edit to suggest any passage of time between the two utterances.

As such, from a journalistic and editorial perspective, the Panorama edit is indefensible and it should not have been broadcast.

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However, not all journalistic and editorial errors are breaches of the law.

For such an error to be unlawful as well as unfortunate something else is needed. A complainant needs to bring the error into the scope of the applicable law, which in England and Wales, for example, would the laws of libel and of malicious falsehood.

A journalistic or editorial error is not, in and of itself, actionable at law.

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So what is the legal complaint of President Trump and his legal representatives?

According to Sky the legal letter is as follows:

Re: Demand to Retract False And Defamatory Statements About The President of the United States of America

Dear All:

This law firm serves as litigation counsel for President Donald J Trump (hereinafter referred to as “President Trump”). Please direct all future correspondence relating to this matter to my attention. This correspondence serves as a demand under Florida Statute § 770.011 that you immediately retract the false, defamatory, disparaging, and inflammatory statements made about President Trump, which were published in a Panorama documentary that was fabricated and aired by the BBC.

Failure to comply will leave President Trump with no choice but to pursue any and all legal rights and remedies available to recover damages for the overwhelming financial and reputational harm that the BBC has caused him to suffer, with all rights and remedies being expressly reserved by President Trump.

In the Panorama documentary, titled “Trump: A Second Chance”, which was first broadcast on October 28, 2024 – a week before the 2024 United States presidential election – the BBC intentionally sought to completely mislead its viewers by splicing together three separate parts of President Trump’s speech to supporters on January 6, 2021.

The documentary showed President Trump telling supporters: “We’re gonna walk down to the Capitol and I’ll be there with you and we fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.”

This fabricated depiction of President Trump was false and defamatory given that President Trump’s actual and full remarks were: “We’re going to walk down, and I’ll be there with you, we’re going to walk down, we’re going to walk down any one of you but I think right here, we’re going to walk down to the Capitol and we’re going to cheer on our brave senators and congressman and women.”

Moreover, the BBC edited out President Trump saying, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Thus, as set forth in an internal whistleblower memorandum, the BBC’s segment maliciously made it appear that President Trump “[said] things [he] never actually said,” by editing together footage from the start of the speech with a separate quote early an hour later.

Due to their salacious nature, the fabricated statements that were aired by the BBC have been widely disseminated throughout various digital mediums, which have reached tens of millions of people worldwide. Consequently, the BBC has caused President Trump to suffer overwhelming financial and reputational harm.

 

A. Applicable law

Words are defamatory under Florida law when “they tend to subject one to hatred, distrust, ridicule, contempt or disgrace or tend to injure one in one’s business or profession.” Johnston v. Borders, 36 F.4th 1254, 1275 (11th Cir. 2022) (quoting Am. Airlines, Inc. v. Geddes, 960 So. 2d 830, 833 (Fla. 3d DCA 2007) (citation and quotation marks omitted)). Statements are defamatory if “the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts.” Johnston v. Borders, 36 F.4th 1254, 1275 (11th Cir. 2022) (quoting Jews for Jesus, 997 So. 2d at 1108).

Further, “where the speaker or writer neglects to provide the audience with an adequate factual foundation prior to engaging in the offending discourse, liability may arise.” See Zambrano v. Devanesan, 484 So. 2d 603, 607 (Fla. 4th DCA 1986).

Even if the BBC attempts to whitewash its conduct as simply an expression of its opinions, Florida law makes clear that such a defense will not absolve its liability. See Dershowitz v. Cable News Network, Inc., 541 F. Supp. 3d 1354, 1362 (S.D. Fla. 2021); see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990) (”Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications.”) (emphasis added); see also Eastern Air Lines, Inc. v. Gellert, 438 So. 2d 923, 927 (Fla. 3d DCA 1983) (“[A] statement that although ostensibly in the form of an opinion ‘implies the allegation of undisclosed defamatory facts as the basis for the opinion’ is actionable.”) (emphasis added).

Consequently, the BBC lacks any viable defense to the overwhelming reputational and financial harm it has caused President Trump to suffer.

 

B. Demand

The above-referenced false, defamatory, malicious, disparaging, and inflammatory statements were published to deliberately denigrate President Trump. The timing of the fabricated documentary is evident.

The BBC’s reckless disregard for the truth underscores the actual malice behind the decision to publish the wrongful content, given the plain falsity of the statements.

Accordingly, President Trump hereby demands that you:

1) immediately issue a full and fair retraction of the documentary and any and all other false, defamatory, disparaging, misleading, and inflammatory statements about President Trump in as conspicuous a manner as they were originally published;

2) immediately issue an apology for the false, defamatory, disparaging, misleading, and inflammatory statements about President Trump; and

3) appropriately compensate President Trump for the harm caused.

Moreover, please allow this letter to serve as notice to you, to your affiliated entities, subsidiaries, to all of their employees, and any other person acting on behalf of or in concert with the BBC, to preserve any and all evidence related in any way to the above-mentioned malicious, false, and defamatory statements the BBC published, and any other statements that the BBC has published regarding President Trump.

By way of this letter, the BBC is hereby directed not to destroy, conceal, or alter any paper or electronic files, physical evidence, and/or other data relating in any way, no matter how remote, to your false claims regarding President Trump, and/or the circumstances leading to their dissemination, including, but not limited to:

1) all communications between you and any third party in any way related to your wrongful claims regarding President Trump;

2) all sources for your false claims regarding President Trump;

3) any and all documents and data referring to, reflecting, or relating to communications between you and any such third parties or sources regarding your false claims regarding President Trump; and

4) any and all documents in any way related to your false claims regarding President Trump. This includes any information alleged to be protected by Florida Statute § 90.5015. Monarch Air Group, LLC v. Journalism Dev. Network, Inc., No. 23-CV-61256, 2025 WL 445491, at *1 (S.D. Fla. Feb. 10, 2025) (interpreting Fla. Stat. § 90.5015 and explaining that the Eleventh Circuit “recognizes a qualified privilege for journalists, allowing them to resist compelled disclosure of their professional news gathering efforts. This privilege shields reporters in both criminal and civil proceedings.”) (quoting United States v. Capers, 708 F.3d 1286, 1303 (11th Cir. 2013)).

I understand that many records and files are maintained electronically. However, this letter specifically requests that all paper and hard copy originals be maintained and preserved in their original format.

By the same token, electronic documents and the storage media on which they reside may contain relevant, discoverable information beyond that which may be found in printed documents. Therefore, even where a paper copy exists and has been preserved, please preserve and maintain all electronically stored documents in their original native format, including all metadata.

This preservation demand specifically encompasses any and all electronic documents, including but not limited to, all word-processed files, emails, spreadsheets, all databases, log files, and any other electronically stored and/or generated documents or files.

If the BBC does not comply with the above by November 14, 2025, at 5:00 p.m. EST, President Trump will be left with no alternative but to enforce his legal and equitable rights, all of which are expressly reserved and are not waived, including by filing legal action for no less than $1,000,000,000 (One Billion Dollars) in damages.

The BBC is on notice.

PLEASE GOVERN YOURSELF ACCORDINGLY.

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(That last term in block capitals is a feature of US litigation letters.)

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There some rather odd things about this legal threat.

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First, the letter states in three places about the the reputational harm caused to Trump:

“…the BBC lacks any viable defense to the overwhelming reputational and financial harm it has caused President Trump to suffer”

“…the overwhelming financial and reputational harm that the BBC has caused him to suffer”

“…the BBC has caused President Trump to suffer overwhelming financial and reputational harm.”

The Panorama programme was broadcast in the United Kingdom days before Trump was re-elected in the United States.

It is impossible to see how Trump being re-elected is consistent with him suffering any harm by the broadcast, let alone “overwhelming financial and reputational harm”.

And if you look closely at the letter, no harm is even shown – let alone “overwhelming financial and reputational harm”.

Instead harm is merely asserted – rather than demonstrated.

As such this seems a weak litigation letter.

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The failure by this letter to show harm then feeds into the threat that Trump may sue for “no less than $1,000,000,000 (One Billion Dollars) in damages.”

Because no harm is shown, this figure is arbitrary.

The letter may have said one dollar or a trillion dollars and would have made as much rational sense.

It is a preposterous demand.

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The letter is also alert to the inconvenient truth that the programme was not actually broadcast in the United States. This is is why the following passage is included:

“…the fabricated statements that were aired by the BBC have been widely disseminated throughout various digital mediums, which have reached tens of millions of people worldwide.”

There is no evidence in the letter that anyone in the United States, let alone Florida, either saw the programme or even know of its existence.

Interestingly, in the demands for document retention, the letter fails to even ask the BBC for evidence of the extent of downloads and broadcasts of the programme. This is a strange omission, if this was a serious legal threat.

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I am not an American lawyer, and so I can offer no view on the merits of this legal threat under the laws of Florida. Even what can seem weak litigation letters may have traction in other jurisdictions.

But if this threat was made under the laws of England and Wales (Scotland and Northern Ireland have their own legal systems) one would say that this claim also had its weaknesses over here.

First, it is would be out of time: there is a one year limitation period.

Second: the claimant would have to show – and not merely assert – serious damage to their reputation. The letter does not do so.

And third: the ceiling for damages claims for libel in England and Wales is about £300,000 – and any award over £100,000 is rare.

This rules out one million pound claims, let alone one billion pound claims.

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Would the BBC have any defence in a hypothetical case brought in England, regardless of the above defences?

A straight defence of truth would not be available – Trump did not say what the Panorama edit had him saying, at least not in one go.

However, the truth defence also covers things which are “substantially” true. This is a riskier defence to mount, but if the BBC did mount it would be along the lines of Trump did effectively promote an insurrection, even if he did not say in one go what was said in the Panorama edit.

Here the BBC could point to findings of Congressional committees and the terms of the impeachment of Trump passed by the House of Representatives (even though he was not convicted by the Senate). The BBC could also say that the 54 minute gap between the statements did not necessarily mean that the latter statement – “fight like hell” – was not an incitement.

An English court would also have regard to the programme as a whole, and also to Trump’s speech as a whole.

Whether Trump was an insurrectionist would presumably not be something Trump would want to have decided by an English court on the basis of the civil standard of proof – the balance of probabilities.

On the other hand, it was a bad journalistic and editorial fail, and so the BBC would not relish this being decided by the London high court either.

On the face of it, if this was litigated at the high court in London (and assuming limitation was not a problem, and the claimant was able to show serious damage) one could see it going either way, though one would expect a successful claim to be worth only about £30,000.

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Stepping back, what we have here is an overstated claim on a somewhat artificial basis. Until recent news reports, one suspects neither Trump nor anyone else in the US even knew about the Panorama programme.

And given he was re-elected president (in the USA) days after broadcast (in the UK), any claim for damages would seem to fall flat.

But.

The facts of the Panorama edit are ugly for the BBC. It was a bad mistake, and so it would not be one where a confident defence could be mounted.

And this, in turn, means Trump has leverage.

Trump loves leverage.

For Trump, civil litigation is a form of deal-making – the promotion of his political and business interests by other means.

One should not approach his legal manoeuvres as if they are cases that will go all the way. They are skirmishes intended to force a deal, a compromise, a back-down by the other side.

A confident BBC would admit a mistake and move on without admitting legal liability.

But we do not have a confident BBC.

We have a media corporation lacking confidence.

Trump loves media corporations -and other institutions – that lack confidence.

And although one would hope the BBC would mount a complete defence to any claim being brought in a jurisdiction where a programme was not even broadcast and where no damage has been shown, one can also imagine the BBC seeking to make amends including by means of compensation (of licence fee payers money) so as to avoid litigation.

The litigation letter may be weak, but Trump’s underlying practical position is strong: the BBC made a mistake, and he knows how to take full advantage of it.

So putting aside the theatrics of a bombastic letter with its senseless $1 billion claim, there is a power play here which Trump has done many times before.

And the real mistake of the BBC (and the production company) was opening itself up to such a play of power.

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