Trump vs the BBC: How defamation law applies in England and Wales

Defamation law in England and Wales aims to strike a careful balance between protecting individual reputation and safeguarding freedom of expression. The topic has once again entered public debate following a high-profile dispute involving Donald Trump and the BBC. Trump has brought a multibillion-dollar defamation claim against the broadcaster over an episode of Panorama that allegedly edited footage from his rally speech on 6th January 2021.

According to the claim, the programme spliced together remarks made at different points in the speech in a way that made it appear that he encouraged supporters to storm the US Capitol building. The BBC acknowledged the edit was misleading but disputes that it is legally defamatory. A US federal judge has scheduled a two-week trial for February 2027. The BBC has recently filed a motion to dismiss the claim on the basis that the Panorama episode was never aired in the US, and that Donald Trump was re-elected even after the episode was aired in the UK.

Although this particular dispute is being litigated in the United States, it highlights broader questions about how defamation claims are assessed. In the England and Wales, the legal framework is largely governed by the Defamation Act 2013.   

What is defamation?

Defamation is a civil wrong (a tort) that arises when a false statement harms someone’s reputation. Statements are usually distinguished between:

• Libel – defamatory statements in permanent form (such as newspapers, television broadcasts, or online publications).
• Slander – defamatory statements in temporary form, such as spoken words.

The legal tests

A successful defamation claim in England and Wales, will need to demonstrate several elements.

1. The statement must be defamatory 

This means that the statement must be capable of damaging the claimant’s reputation.

The Courts ask whether the words would lower the claimant in the estimation of right-thinking members of society or expose them to ridicule or contempt. The Courts interpret the meaning from the perspective of the ordinary reasonable reader or viewer, and not from the claimant’s own interpretation.

2. The statement must refer to the claimant 

This does not necessarily mean the person must be named explicitly. If a reasonable reader or viewer would understand that the statement refers to the claimant (either directly or indirectly) that requirement will usually be satisfied.

3. Statement must be published 

Defamation only arises if the statement has been communicated to at least one third party.

Publication can include:

• Newspapers or magazines
• Television and radio broadcasts
• Online articles and blogs
• Social media posts
• Other forms of digital communications including emails, text messages etc.
• Spoken words or conduct

Even a statement shared with a small audience can qualify as publication.

4. The “Serious Harm” requirement 

Under section 1 of the Defamation Act, a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the claimant’s reputation.

For businesses and companies, the bar is even higher as they must show serious financial loss.

In practice, the courts will consider factors such as:

• How widely the statement was published
• The seriousness of the allegation
• Evidence that the claimant’s reputation has been affected

Defences to Defamation Claims

Even if a claimant is able to successfully establish their claim, there are a number of defences that a defendant can rely upon which include the following:

Truth 

If the defendant can prove that the statement is substantially true, the claim will usually fail.

Honest opinion 

This can protect genuine opinions rather than statements of fact, provided the defendant can show that their opinion was based on facts that existed at the time which they believed to be true.

Public interest 

Journalists and publishers may seek to rely on a defence if they reasonably believed the publication was in the public interest.

Privilege 

Some statements, including those made during court proceedings or in a professional/work context where there is a moral duty to report, are usually protected by legal privilege.