The latest Telegraph report on Donald Trump’s $10 billion dollar defamation action against the BBC presents the Corporation as moving decisively onto the offensive. It is seeking access to Trump’s private communications and to material gathered by Jack Smith, the former US Special Counsel appointed to investigate Donald Trump’s actions surrounding the 2020 election and the alleged attack on the Capitol on 6 January 2021. Smith concluded there was sufficient evidence to prosecute Trump for attempting to overturn the election result, but his case never came to trial because long-standing Department of Justice policy prevents the prosecution of a sitting President. The BBC now wants access to the evidence assembled during that investigation.
The clear impression is that the BBC has seized the initiative and that Trump is increasingly on the back foot. But there is another reading of events, and it could ultimately prove far more significant.
The BBC is no longer simply defending the BBC1 Panorama programme – broadcast days before the presidential election in 2024 – that gave rise to this litigation. It is attempting to prove that the central allegation conveyed by that programme was substantially true. That is an ambitious legal strategy.
The action arose because Panorama broadcast an edited version of Trump’s speech before the attack on the Capitol which the BBC subsequently accepted had created a “mistaken impression”. Trump argues that the edit falsely portrayed him as encouraging the violence that followed and has sued for defamation.
The BBC’s answer is no longer confined to saying that the edit was a mistake or that Trump suffered no measurable damage. Instead, it is seeking evidence which it believes will establish that, despite the flawed editing, Trump did in fact incite the events of January 6. That explains its attempt to obtain Jack Smith’s files together with the President’s private messages and other evidence.
There is, however, an important distinction that deserves more attention than it has so far received. Jack Smith was appointed as prosecutor, not a judge.
His report is the prosecution case. It explains why he believed there was sufficient evidence to prosecute Trump. It is an important document, but it is not a judicial finding of fact. No court has tested either Smith’s conclusions or the evidence upon which they rest because the prosecution ended before trial. The BBC is perfectly entitled to rely upon Smith’s work, but it is relying upon the conclusions of a prosecutor rather than findings established after a contested hearing. Trump’s lawyers will be equally entitled to challenge both the conclusions and the evidence.
That makes the BBC’s strategy legitimate. It also makes it inherently risky.
An even greater irony lies elsewhere.
For years in the UK the BBC has fought determinedly to prevent outsiders discovering how controversial editorial decisions are reached inside the Corporation. It has repeatedly invoked the journalistic exemption contained in the Freedom of Information Act to refuse requests for internal emails, editorial discussions and decision-making records. News-watch has encountered that barrier time after time. Attempts to understand how contentious journalism was conceived, discussed and approved have been met with the same answer: Parliament intended journalistic material to remain confidential.
Yet in Florida the BBC is relying upon a legal system founded on almost the opposite principle.
To defend itself, the Corporation is asking the court to compel the disclosure of Trump’s private communications, the investigative files assembled by Jack Smith and evidence held by third parties. In doing so, it has entered a jurisdiction where extensive disclosure is not an exception but one of the central mechanisms by which courts establish the truth.
That has obvious consequences. American discovery is reciprocal. A party seeking disclosure from its opponent must itself expect to disclose relevant material. If the BBC is entitled to examine Trump’s communications, Trump’s lawyers are equally entitled to seek disclosure of relevant BBC material. Internal emails, draft scripts, editorial discussions and records showing how the Panorama programme was researched, written, edited and approved may all become subjects of legitimate inquiry if they are relevant to the issues before the court.
This is the aspect of the litigation that receives surprisingly little attention in the Telegraph‘s coverage. Its emphasis is on the BBC’s increasingly robust attempts to strengthen its defence. But every procedural step taken by the Corporation potentially widens scrutiny of its own editorial conduct and processes. Discovery cuts both ways.
Indeed, another development reported by the Telegraph may ultimately prove even more significant. Trump’s legal team has indicated it is preparing to question former Director-General Tim Davie about the editorial decisions surrounding the Panorama programme and, if necessary, seek the assistance of the English High Court to compel his evidence.
That is no ordinary witness interview. It has the potential to become the most searching examination of BBC editorial governance ever undertaken.
For more than twenty-five years, News-watch has sought to understand how the BBC reaches controversial editorial decisions. The Corporation’s complaints system has revealed remarkably little. Ofcom has no power to compel wholesale disclosure of newsroom deliberations. Freedom of Information requests have repeatedly been defeated by the journalistic exemption clause which applies to the BBC. Until now, the Corporation has largely succeeded in keeping the internal workings of its journalism beyond public examination.
Now, unexpectedly, it has entered a legal arena where disclosure is central to the judicial process. The BBC may ultimately persuade the court that its portrayal of Donald Trump was substantially justified. But in choosing to advance that defence, it has also accepted something it has resisted for decades in Britain.
For the first time, its own editorial decision-making may be examined in forensic detail before an independent court. If that happens, the most important story in this remarkable litigation may cease to be Donald Trump. It may be the BBC itself.