American court orders BBC to hand over Yasser Arafat documentary footage
Ruling raises questions about the ability of the American justice system to seize material held by media outside the United States
Cahal Milmo is the chief reporter of The Independent and has been with the paper since 2000. He was born in London and previously worked at the Press Association news agency. He has reported on assignment at home and abroad, including Rwanda, Sudan and Burkina Faso, the phone hacking scandal and the London Olympics. In his spare time he is a keen runner and cyclist, and keeps an allotment.
Monday 24 September 2012
The BBC has been ordered by an American court to surrender unused footage filmed for a documentary about former Palestinian leader Yasser Arafat to American victims of suicide bombings in Israel.
In a ruling which raises questions about the ability of the American justice system to seize material held by media organisations outside the United States, a judge in New York said the Corporation was obliged to hand over outtakes from interviews with two Palestinian fighters.
It now has until 1 October to lodge a further appeal or produce the material along with a sworn statement from a BBC employee confirming its authenticity. The Corporation said yesterday it was still considering the ruling.
The material is being sought by lawyers representing victims and relatives of those killed by suicide bombs in attacks around Jerusalem. The group is attempting to bring a civil damages claim against the Palestinian Authority and others for allegedly funding terrorist groups behind the bombings.
The victims believe that the BBC interviews with a leader of Fatah, the political movement founded by Arafat, and an alleged terrorist in the Al Aqsa Brigades in the West Bank city of Jenin, contain statements which will help prove a link between the bombings and the PA and the Palestine Liberation Organisation (PLO).
The BBC resisted the application, arguing that complying with the demand would compromise its editorial independence and damage its ability to gather news.
In a ruling obtained by The Independent, the American judge said he was “sceptical” that the unbroadcasted footage would provide the proof sought but threw out the Corporation’s objection, saying the recordings were not confidential and not covered by “journalistic privilege” designed to protect reporters’ investigations.
Judge Ronald Ellis said: “The outtakes are not confidential material because the BBC is free to disseminate any portions of the interviews... Although the court is sceptical of a ‘smoking gun’ presenting itself in these outtakes, the standard for relevance to overcome the journalistic privilege is low and the outtakes meet this lower standard.”
The judgment will have the effect of forcing a non-American broadcaster to surrender unbroadcast footage from a documentary - Arafat Investigated - made almost a decade ago for a British audience.
It is part of a growing trend in America for courts to order the disclosure of journalistic material. Research has shown a sharp rise in subpoenas to media organisations, in particular broadcasters who receive 10 applications for every one sent to newspapers.
In Britain, broadcasters recently successfully fought off an application to hand over footage of the eviction of protesters from the Dale Farm travellers site in Essex but were last year obliged to surrender unused video from the summer riots.
The material in the New York case relates to interviews with Ata Abu Rumaileh, the leader of Fatah in Jenin, and Zakaria Zubaidi, a claimed leader of the Al Aqsa Brigades in the West Bank city.
In the broadcasted section of the programme, the two men are claimed to have made statements describing Al Aqsa as being part of Fatah and under the control of Arafat, who died in Paris in 2004.
Jerusalem and other Israeli cities were plagued by suicide bombings throughout the early 2000s, particularly between 2001 and 2004 when there were a total of 128 attacks - triple the total for all other years between 1990 and 2008.
The American victims believe the unused interview will help prove their case that Fatah and Al Aqsa were closely connected and thus render the PLO and the Palestinian Authority liable for damages under US anti-terrorism laws.
A BBC spokeswoman said: “We are aware of the judgment and we are considering it.”
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