Ross tried to stop broadcast but BBC failed to protect him

Could Ross have a case against the corporation for loss of earnings?

Jonathan Ross has a lot of thinking time at the moment. Having shocked the nation by egging on fellow bad boy Russell Brand to greater depths of schoolboyish filth at the expense of one of Britain's best-loved actors, he is a couple of weeks into a three-month suspension without pay from the BBC. Having narrowly escaped the sack, or so we were told, he is left to contemplate the lowest point in an already controversial career.

Yet it is fair to assume that remorse, embarrassment, and a concern for how much longer he – at 47 – can go on playing the cheeky kid will not be the only matters on his mind. For many details behind the episode have yet to emerge, and some of them portray him in a rather better light. While it remains irredeemably true that Ross uttered the words "he [Brand] fucked your granddaughter" in a message to Andrew Sachs, it appears that he did take steps to mitigate the damage.

Specifically, the IoS has learned, Ross warned producers that the now infamous lewd phone call should not be broadcast. Friends of the entertainer say he realised within minutes that the call had gone too far. According to these friends, Ross told Radio 2 producers: "I expect you'll be editing all that out", to which the reply was: "Some of it's funny." Ross then said the producers should check if Andrew Sachs was happy with the edit before broadcast.

Sachs himself has confirmed that he was phoned by somebody at the BBC who asked if the messages left on his voicemail could be broadcast. Although he did object, someone at the BBC overruled his and Ross's concerns and went ahead.

"It is not Ross's fault," a friend said. "There is a golden rule across the industry that producers are supposed to protect talent, especially guests on other people's shows who might get roped into something. If you are a producer, then it's your responsibility.

"If it's a live show, you have talkback from your producer, so if you do anything wrong you can be told to apologise. If it's a pre-recorded show, then it's up to the producer. Guests are not responsible. Ross's treatment has been grossly unfair. Whether what they said was right or wrong, it need never have gone to a wider audience. It could have stayed between the people in the studio and Andrew Sachs."

Since the row, beyond issuing an apology, Ross has kept his opinions to himself. But, knowing the custom for guests on a show not to be responsible for what is eventually aired, it would be surprising if he didn't feel a sense of grievance. Further, media lawyers have suggested he might have a strong case for negligence against the BBC. Any comments or opinions ascribed to Ross suggest he would prefer to take his suspension and return to work early next year, rather than stand on principle. "He is happy at the BBC and looking forward to coming back," a friend said yesterday.

Ross's contract expires in two years' time. Many have called for it not to be renewed, if not cancelled immediately. Certainly, as Terry Wogan acknowledged last week, his reported £6m salary has sharpened opinion against him, but he remains hugely popular with a portion of the public that the BBC has traditionally struggled to attract. The BBC has made very little comment about Ross's possible future. The director-general talked about this episode being his last chance, but for now any new contract remains the great unmentionable.

If it is true, however, that Ross would have a strong legal case against the BBC, it would be surprising if this did not colour the corporation's feelings towards him. For the moment, there is no sign of Ross suing for loss of earnings, but if he has lost money and could argue that the BBC had been negligent, a vigorous lawyer might well encourage him to take action. The resignation of a second supervisory figure, David Barber, head of compliance, and yesterday's Radio 2 apologies, do not bode well for the BBC.

One figure not known for taking such matters lying down is Ross's agent, Addison Cresswell. He is among the most assertive, enterprising and influential media agents, and would take any perceived short-changing of one of his most high-profile clients as a professional affront. It is known that Ross spoke informally to lawyers on his team soon after the affair broke. It is more than fair to speculate that if the BBC were to decide not to offer Ross a new contract, that in itself would be clear evidence of a loss of earnings, or so Ross's lawyers might claim.

No wonder, then, that Ross's camp is keeping its powder dry. If, though, after the dust had settled, talks were to begin about a new deal and a figure agreed on, all is well. If not, who knows? M'learned friends are lurking. But I'm sure we can all be grown-up about this, can't we?

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