You Want a Libel Trial? Try England

I suggested the other day that ABC/Disney better be pretty careful or they would have some serious libel exposure for their ‘Path to 9/11.’ News reports since then suggest that the cutting room floor is getting crowded, so perhaps the most potentially libelous sections are being removed. What’s left behind may be one-sided, may leave out critical moments and information, but it’s an awful lot harder to make out a libel case based on implication by omission than it is to point to the smoking gun of commission.

Meanwhile, however, comes the news that ABC has sold rights to the BBC, which will be showing the film on Sunday. I’d love to know whether ABC has indemnified the BBC for any libel claims because it is waaaaaay easier to make a libel claim stick in the UK — even if one is a non-resident — than it would be in the US. And a British jury (libel being about the only time civil cases are tried to a jury in England any more) is likely to be infinitely more sympathetic to the Clintons, and hostile to the current administration, than any US jury.

I can see why ex-President Clinton might not want to file suit in the US, but discovery is much less invasive in the UK. As for the other persons in the Clinton administration who may feel that their reputations have been tarnished by whatever emerges from the dungeons of ABC/Disney, I’d advise them to consult counsel in England (names available on request). Easier to make the case, and the damages (plus costs!) could be quite substantial if the facts are still there to support a claim.

If I have any readers in the UK, they might wish to contact the BBC to warn them about their programming choices. It would be good to put them on notice of the risks. The BBC will understand what its potential exposure is.

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5 Responses to You Want a Libel Trial? Try England

  1. Phill says:

    Michael,

    There have been a couple of changes in the libel laws. One big change is that cases are not necessarily heard by a jury any more.

    Even so the BBC libel lawyers are probably going over the film as we speak and it is enitrely likely that they will decide that it cannot be shown without any external prompting.

    Damages for libel cases are no longer routinely in the millions but for cases of this type they could well be the exception.

    Clinton, Albright and Berger would probably have the sympathy of the judge even if there was no jury. The UK establishment tends to respect the establishment.

    Clinton’s lawyers could easily stop the BBC showing by sending them the same letter. If the BBC decide that they cannot show the program as defamatory it would be much much harder for ABC to go ahead.

    Moreover ABC would have even less ability to claim that the film was not actual malice.

  2. Phill says:

    It does not have quite the same importance as in the US but the BBC cannot pretend that it was unaware of the controversy and the statements made by Clinton, Berger and Albright. It reports them as a top story on its own news service:

    http://news.bbc.co.uk/2/hi/entertainment/5326706.stm

  3. I have just sent the following message to the BBC via a web form at http://www.bbc.co.uk/info/contactus/form.shtml. The programme details are supplied separately in the form.
    “URGENT- LIBEL You should be aware that there has been active discussion in the USA over the false allegations made in this docudrama about failed efforts by the Clinton Administration to kill Osama bin Laden. You may have a serious exposure for libel of say Madeleine Albright and Sandy Berger. The programme does NOT, I am informed, include the important CIA briefing to George Bush in the summer of 2001 headed “Bin Laden determined to strike in the United States” or words to that effect. This omission suggests that the work is essentially Republican election propaganda and you have no business airing it. Saturday 8 September 1445h CET. James Wimberley “

    The BBC guards its internal mail addresses pretty well. There isn’t even one fot the
    press office, the usual last resort.

  4. Caoimhin Laochdha says:

    From prior post/comments:
    *******************************
    Since copies have been distributed, why not file the suit today?

    Right now the threat is better than the act. Plus there’s no prior restraint in the US so you couldn’t stop it being shown. And believe it or not, it takes a little time to write a really great complaint. (And the damages are bigger later; right now they’re not big enough to make it worth filing the suit. Were ABC to pull the film there would be no litigation.)

    ******************************
    I don’t believe the issue is prior restraint.

    The fact is ABC has already committed libel by publishing intentionally false and maliciously harmful statements about President Clinton, and Clinton officials, to thousands (if not tens of thousands) of people – mostly ABC’s Republican allies. ABC does not necessarily need to broadcast its libel to millions on the public airways to commit libel. A direct mail broadcast to the thousands or so viewers to whom ABC directly targeted its intentional lies will suffice.

    In fact, I suspect that when the revisionist bloggers, right wing propagandists and other extremists wackos who received ABC’s initial broadcast — with the most dishonest scenes intact, they folks watched it without the worthless disclaimer ABC now says it will run when it airs its 9-11 disparagement hit piece. Certainly one measure of proof and damages of ABC’s libel is, after showing it to Republican operatives and right-wing fantasy entertainers like Rush Limbaugh, these same people started repeating ABC’s knowing lies about Clinton and those who worked for him in the effort to fight Bin Laden.

    ABC can just as easily libel President Clinton or Sandy Berger by publishing an intentionally malicious falsehood about them to Rush Limbaugh, which Rush views in his Florida mansion, as it can by broadcasting it into Malachy Moriarty’s living room in Peoria, Indiana. The damages and measure of proof may in fact be better with the former rather than the latter.

    slainte,
    cl

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