The greatest ostensible oddity about the Newsnight programme involving ( at that stage an unnamed) Lord McAlpine is the position of the BBC’s in-house libel lawyers. The Corporation has been remarkably coy about what legal advice they were given about the programme before it was broadcast. These questions urgently need to be answered by the BBC:
1. If the libel lawyers were not shown the programme in whole or part, who made the decision to withhold the programme any part of the programme from them?
2. If the libel lawyers said no to the broadcast as it was shown, who overrode their advice?
3. If the lawyers did not say no, how did they come to such a judgement?
To the best of my knowledge, not one BBC programme has asked or simply siad what the BBC libel lawyer (s) advised. That in itself looks suspicious. For its own protection, the BBC needs to start publicly asking and answering these questions.
Any libel lawyer will know that not naming someone cuts no ice where a broadcast or written communication provides a reasonable chance of an individual being identified from the details given in the broadcast or written communication. Worse, even identifying a small group to whom libellous details might apply could provide solid grounds for a libel action. For example, suppose a broadcaster or newspaper published a story alleging that two players in a football side had been bribed to throw a game without naming the two players. Whether the story was true or not, the players who were not guilty of such behaviour could reasonably claim they had been defamed because the public might suspect any player in the side.
Had the programme simply said that a high-profile political figure was allegedly guilty they would probably have been safe. By saying it was both a Tory politician and one prominent in the “Thatcher era” they made the identification much too easy. (Whether that was a politically motivated decision is debatable, but it is difficult to imagine the BBC running a story which contained an equivalent accusation of, say, a high-profile Labour politician of the Blair era.” )
There is also a problem with the idea that the furore could have been avoided if John Messham, (the person, who spoke on Newsnight of being sexually assaulted by a high profile Tory politician), had been shown a photo of McAlpine by the Newsnight people before the programme was put together. Mr Messham has said since the programme was broadcast that, having seen a photograph of McAlpine, he was sure this was not the man who had assaulted him. (http://www.mirror.co.uk/news/uk-news/lord-mcalpine-did-not-abuse-me-1427866). There is no reason to disbelieve this retraction because Lord McAlpine has mounted a most vigorous and convincing defence against the accusations. Nonetheless there are difficulties with the idea that such a positive identification could be made from a photograph.
The alleged assaults took place in the mid 1970s. I would defy anyone to be able to swear one way or another to the identity of a man from a photo 35-40 years on. Moreover, exactly what photo could Newsnight have shown him? A recent photo of McAlpine? One taken from the 1970s? if the former, identification could surely not be certain: if the latter, would 1970s photos of McAlpine be readily available, and even if they were, would they be good likenesses of the man?
This can of worms is far from being fully opened.