Donald Trump, the president of the United States, is suing the British Broadcasting Corporation (BBC). The claim has been filed in Florida and the court docket for that case can be seen here. It is a curious and in many ways weak claim, but the legal merits are not the point.
Trump is a master of using litigation as leverage. Here he was schooled by the infamous Roy Cohn who, despite having died in 1986, is perhaps one of the most significant lawyers of the 21st century.
What Trump adds to Cohn’s cynical gaming of the legal process is a profound sense of the weakness of media and other organisations. Trump knows how to use litigation to exploit weaknesses and to obtain favourable outcomes.
This is not to say Trump is on top of the detail of his legal claim. He may not even have read it. Recent footage shows him asserting that the BBC made the relevant editorial error by means of artificial intelligence. That is not actually part of his 33-page claim, and is at odds with his pleaded case. But it does not matter. Trump and his lawyers smell blood.
The key undeniable fact in this case is that the BBC made a mistake in splicing together parts of a speech by Donald Trump to give the impression he said one thing together, rather than two things nearly an hour apart. It was an error which should not have been made.
The BBC wisely has not denied the mistake, and it has correctly made an apology. Had it sought to defend the mistake, its legal position would be weaker, as it is virtually certain that any court would find against any such defence. In litigation it is sensible not to defend the indefensible as it undermines credibility generally, and so makes the rest of a defence look weak too.
But editorial errors are not, in and of themselves, unlawful. A mistake does not create a legal cause of action. And here the BBC is on far stronger ground. In particular, there is no real basis to say that the BBC was malicious and there is no direct evidence that anyone in Florida or even the United States actually saw the programme.
Trump’s lawyers realise the weaknesses in their case. That is why the filed claim is dominated by making out a case for Florida being the correct jurisdiction and venue, and a great deal of its content is devoted to an elaborate account of the BBC’s supposed untoward motives.
Perhaps we can think that Trump and his lawyers pleadeth too much. It is certainly difficult to see how even a Trump-friendly jury and a Trump-appointed judge would properly find in the president’s favour on this case.
But again, that is not the point. The reason for all these tenuous arguments is to make it harder for the BBC’s lawyers to get the case dismissed before trial. And this is the objective: keeping the case going means there is more pressure on the BBC to settle—or even capitulate. Trump’s legal team want to make it seem all too complicated for the case to be struck out at an early stage.
So what should the BBC do? Senior executives who long for a quiet life may want to settle, like various media companies and other entitles have done when faced with similar cases. And no doubt Trump and his lawyers are hoping that such sentiments prevail.
The BBC should, however, stand firm and prepare for trial. This does not necessarily mean that the case will go to trial: almost all civil lawsuits settle before a full hearing. But it is only by showing that it is genuinely ready to go all the way that the BBC can seek to bring this to an end on favourable terms. And faced with such fortitude, Trump may himself make a favourable offer or even pull the case completely.
Some onlookers are urging the BBC bring a counterclaim, and it may be that it decides to do so. Trump certainly has been disparaging of the BBC. But unless there is a good reason to bring such a counterclaim, they are best avoided in cases like this. They will at least double the costs and complexity of the case, and will increase the chances of something going wrong.
The objective for the BBC must be to extract itself from this case on the most favourable terms and as cleanly as possible, not to expand and complicate the case further. And so the BBC has to be resolute and put Trump to proof on jurisdiction and showing malice and damages.
Trump’s perspective is that here is yet another vulnerable media organisation with unimpressive leadership, and another opportunity for him to gain leverage. His lawyers have brought a case which, although ultimately weak, is designed to be difficult to shake off before trial.
The BBC, facing a claim that is for extinction-level damages of $5bn to $10bn, has an immense fight on its hands. Any early settlement will be similarly for a considerable amount. It has no other choice but to march forward and join this unwanted battle.
