The corporation’s lawyers say the impression that two parts of his 6 January speech were given sequentially was “unintentional”, and I believe it was. Nobody remarked on it at the time, and it’s only the recently published leaked memo from Michael Prescott that sparked the furore leading to DG Tim Davie’s departure, along with Head of News, Deborah Turness. And it seems Mr Prescott is not quite as impartial as he would like to appear, of which more below.
The actual apology was for “unintentionally creating a mistaken impression that President Trump had made a direct call for violent action,” but made no mention of misleading anyone. And the difference between directly calling for violent action and an hour-long speech indirectly calling for the same thing seems like dancing on the head of a very small pin.
Their defence rests on five points, firstly that the programme never appeared in the USA, that he suffered no harm because he went on to win the election in a 'landslide' (his own word), that the edit was only intended to shorten a long speech and only made up 12 seconds of an hour-long programme. And finally, that an opinion on a matter of public concern and political speech is heavily protected under defamation laws in the US.
A BBC insider said that internally, there is a strong belief that there is no case to answer.
More than this, I think in court it would be perfectly reasonable to argue that the impression given didn’t mislead or wasn't unfair to Trump because it was substantially true.
Lawyers for the BBC will be able to call on witnesses who have already given evidence under oath either in court or to Congress, and have been found guilty. Some pleaded guilty to crimes that took place on 6 January 2021. They presumably will either have to lie in support of Trump or risk a charge of perjury. More importantly, people who were present at the time and who haven’t given evidence could be called, including Trump himself. It could be the greatest own goal in history.
It’s worth noting that Trump’s lawyers never let him testify in court since they know he’s more than likely to unwittingly admit his own guilt. Also, as far as I can see, he most often 'wins' legal actions by settling out of court beforehand when the other side believes the risk is too great. But when a jury is involved, he invariably loses.
It has also now emerged that a similar edit appeared in a BBC Newsnight programme in 2022 with Kirsty Wark talking over it. Trump's legal team has seized on this to claim it was "now clear that BBC engaged in a pattern of defamation against President Trump".
Bear in mind now that Trump has had three years to file a claim and hasn't. The defamation was so bad, with Trump suggesting recently that the BBC had "butchered" the video of his speech, that nobody noticed for three years!
And the notion that this 'defamation' is worth up to $5 billion just shows how far removed from reality he is.
I'm not a lawyer, but I did quickly look at what the legal basis in the USA is for proving defamation and it's quite hard. A plaintiff has to show four things: That a false statement purported to be a fact, that the publication or communication of that statement to a third person occurred, that fault amounting to at least negligence and finally that some harm was caused to the reputation of the person or entity who is the subject of the statement. Can Trump's reputation be damaged any more than he has damaged it himself?
Different states also have different standards for proving defamation. A 1964 case (New York Times Co. v. Sullivan) changed the nature of libel law in the US by establishing that "public officials could win a suit for libel only when they could prove the media outlet in question knew either that the information was wholly and patently false or that it was published 'with reckless disregard of whether it was false or not'."
In Florida, where Trump was living at the time, to successfully claim financial damages, plaintiffs "must present concrete evidence demonstrating how false statements directly caused measurable economic losses." This requires things like cancelled contracts or declining revenue statements showing a "direct correlation to when the damaging statements were made."
Trump has enriched himself by billions of dollars since taking office in January this year and is likely to have made billions more by the time a case comes before a jury. His family is also making money hand over fist. The details of all of this would be fair game in court. It would take a miracle to prove he suffered losses.
Finally, some sharp-eyed sleuth has noticed that Michael Prescott is also guilty of editing Trump's speech but to give the opposite impression, that Trump was only calling for peaceful protest. James Ball shows how Prescott himself 'doctored' Trump's words to miss out the section in bold below:
“We’re gonna walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them.
“Because you’ll never take back our country with weakness. You have to show strength, and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.
“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
Fancy that. Prescott spliced together two different parts of Trump's speech. In The Telegraph, of all places. Let's hope Trump sues.
It’s right that the world’s most trusted broadcaster should take on the world’s greatest liar.
