BY PAUL T HORGAN

Competitive sports are not, we are constantly told, just about winning. They are also about taking part:

This, to a degree, makes sense. If no-one apart from one person took part in a sports contest, it would not be much of a contest.

This is also the case in lawsuits. The suit is not only about the result, but about the case made by the plaintiff and the defence provided. In some cases this is abused, where a defendant may win but the ‘punishment’ is in the legal process even if the plaintiff loses. We are seeing this repeatedly where army veterans are pursued through the courts years after a military action because of a few seconds of conduct that some activist lawyer claims is a war crime, but it takes time to prove otherwise. 

The most egregious examples of this has to be the work of Phil Shiner, who dishonestly abused the legal process to persecute, amongst others, numerous soldiers who fought in the Battle of Danny Boy, a heroic action that was falsely tainted by Shiner’s actions. 

Despite being exposed as a fraud to a criminal standard, this is not mentioned at all by The Guardian in any article authored by Shiner that still appears on its website, or the web pages that aggregate his articles. Shiner also tried to escape the bankruptcy caused by his fraud by transferring assets, but he was caught out. 

The Guardian is well-known for making amendments to articles when new facts emerge. Perhaps this is only when it is convenient or required by events, and not out of human decency or journalistic accuracy, or if its writers turn out to be scoundrels. But that’s The Guardian for you.

Which long preamble brings me to the case of Trump vs the BBC. As should now be well-known, the BBC, in an episode of the Panorama current affairs programme broadcast a week before the US Presidential Election, libelled Trump by splicing two different extracts from a speech he made on January 6^th, 2021 that had the effect of making it appear that he incited a mob to storm Capitol Hill later in the day. 

Liberals have for years accused Trump of so doing to the point of passing a vote of impeachment in the House of Representatives on the topic. However the vote was seriously partisan, and the half-dozen or so Republicans who supported the motion were all hostile to Trump (the technical term is ‘Never-Trumpers’) in one form or another, or, if they were erstwhile Trump loyalists, it seems that they had substantial funding to become turncoats.

The bald facts are that Trump did not incite the storming of the Capitol, impeachment vote or not. But that did not stop the BBC from fiddling with a video to make it seem that he did. The fact that it took so long for this to be noticed is largely due to the saturation of anti-Trump rhetoric that is disguised as news in the legacy media. The Panorama programme is a prime example of this.

Trump is an outspoken character, and saying that he did not entirely accept the outcome of the 2020 US Presidential Election would be a prize understatement. In fact, while his issues with the balloting and the count did not pass a legal test, it is highly likely that his objections ensured that the 2024 election was as fair as it was possible to be. This requirement for fairness may have helped ensure that Trump won every swing state. 

While it may seem to the British reader that US Presidential and Congressional elections should always be fair, American electoral processes remain extremely questionable to this day.

But Trump does not need to win his case to damage the BBC. Just like with the frivolous lawsuits mounted by liberals against our brave servicemen, the punishment may be the process. The BBC may be forced to settle, not for the headline figure of $1-5Billion, but certainly somewhere in the region of $20Million.

The BBC’s basic defence seems to be that, while the offending programme was mis-edited and misleading, it was only broadcast in the week just before the 2024 Presidential election, and it was only seen in the UK, and therefore it would not be possible for a significant number of Americans to be able to see it. Additionally, the programme was only available in the subsequent months on iPlayer, which is ‘geo-locked’, meaning that no person using a device whose internet address was outside of the United Kingdom could gain access. However the second argument could be easily destroyed. 

As UK-based porn enthusiasts will have recently discovered with the passing into law of the Online Safety Act, using a service provided by a Virtual Private Network that reroutes internet traffic through an internet address registered overseas can resume access to their favourite porn websites without the need for providing some form of identification to formally declare to regulators and also on a database that you are both over the age of 18 and that you want to access hard-core pornography. 

While the BBC’s Panorama programme is not hard-core pornography (yet), similar methods could be used by US-based viewers to access the UK-locked programme. It would then be possible for them to use various pieces of software to capture the video and then upload the offending extract to their own social media. Given that the spliced video would validate the opinions of Trump-haters, this remains possible, if not probable, but also provable. Civil cases are decided on the balance of probabilities for proof.

So all Trump’s legal team has to do is to demonstrate that, on the balance of probabilities, US voters had access to the offending programme in some format days before the Presidential Election, and also that the spliced video had been uploaded to social media platforms in the last few days before the US Presidential Election and managed to garner hundreds of thousands of views on those platforms. 

In this, the BBC may actually help President Trump. It would be a breach of the BBC’s copyright for any BBC programme to be uploaded to YouTube or the like, and the BBC will issue takedown orders. So if the Trump team establishes that the BBC monitors when content is illegally uploaded and also issues such orders, then the BBC may be asked to prove that no such orders were issues for the offending programme. But surely I am getting ahead of myself.

If the case does not fall at the first hurdle, then the next stage is the provision of evidence. There is something called the ‘discovery process’, and this is where Team Trump can defeat the BBC. The broadcaster will be obliged to turn over the aforementioned takedown orders, as well as internal documents and memos about the production of the programme, some of which may be extremely damaging to the BBC’s reputation and standing, especially if they contain comments regarding the spliced footage, and also if some are derogatory. It was, after all, the leak of a single document that led to the BBC’s Director-General and CEO of News both having to quit their jobs. 

Any further document releases may require more managers and executives to fall on their swords, and the harm to the BBC’s future may be fatal. The offending programme would have had to go through several layers of management to gain approval and these managers and executives possessed considerably more responsibility than had either Tim Davie and Deborah Turness (who should have quit over the Gaza documentary, but held on and thus she took Tim Davie with her) for the programme, but their current anonymity outside the industry seems to be protecting their jobs. 

And this is why the BBC may settle. The cupboard contains far too many skeletons. 

The BBC could try to argue that Trump won despite the programme, but that is only an argument about the level of harm, and therefore the level of compensation. It is a tacit concession.

Team Trump could then argue that a knock-on effect of the programme was that some Republican candidates for Congress lost tight contests, and this affected the Republican majority, which may have led to the US Government shutdown that recently ended. The BBC would have to prove that it didn’t. The punishment would be the process.

The going rate for media organisations settling cases with Trump seems to be in the area of $15-20Million. Another edge Team Trump may have is that when two extracts of someone talking are spliced, there is usually an indicator, which was absent in this example, and it is usually also the case that both extracts are both substantive in their own right. The second extract ” . . .and we fight. We fight like hell” fails that test. This is yet another argument that Team Trump can make. 

Trump is, in addition to his other occupations, a media professional. In fact it is likely because of how he leveraged his high media visibility on reality TV shows that he was selected by the Republican Party to run for office, and also won in 2016 and 2024. Trump would have been acutely aware of how television programmes are edited for broadcast.

At the time of writing, it looks like the case may be fought in Florida. There is a US Judge in the Sunshine State that may soon hold the future of the BBC in his or her hands. Trump does not have to win, he just has to take part. Stay tuned.

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Paul T Horgan worked in the IT Sector. He lives in Berkshire.