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Having had gone to Law School, I find myself inclined to raise some questions and points regarding the matter of the BBC's possible liability in relation to the Atlantis airing.

First of all, given the way that this point keeps coming up, I'll start off by saying that I really think that neither of you, Graham and Robert, are ever going to feel like you've done enough over this matter until you truly seriously consider taking the matter to court. It seems clear to me from your postings on this that you're only partially satisfied with the BSC's ruling, and not very satisfied at that. My guess is that that's because you suspect that the BBC is or will win the public relation battle, where they're arguing victory on the preponderance issue, (number of actual victories) and you guys are saying you won because you won the essential victories.

Robert says he's thought about legal action, but I wonder how carefully. Graham's latest post on the Introduction page makes me wonder if he's really one hundred percent clear on the legal criteria potentially at play here, as well as the relevant evidentiary matters.

"Ask any lawyer (or behavioural scientist): intentionality can be INCREDIBLY DIFFICULT TO PROVE, even if one has plenty of witness statements, lie-detector tests, affidavits etc."

My understanding is that it is MUCH, MUCH EASIER PROVE IN A CIVIL COURT that the accused is guilty than it would be in a criminal court. This is because in civil law one need only demonstrate one's case on the *balance* of probabilities, as measured by the (perceived) judgement of the average reasonable person. Put another way, it is encumbent upon the judge or jury to try to anticipate what the average person would think about a given case. The balancing part of the equation is utterly crucial here, for it entitles the judge and jury to have doubts or uncertainties about *both* of the cases presented.

In a criminal court of law, this kind of dualistic reasoning is not allowed. ALL members of the jury must believe that the accused is guilty "beyond a reasonable doubt". If they have the slightest cause to think s/he might not be guilty, they are legally required to render a not-guilty verdict. Note that there is no weighing of both sides of the story here in the final outcome. The the slightest nugget of gold on one side of the scale is enough to completely counteract the impact that an entire Fort Knox would have on the other. Theoretically, that's why intention is so hard to prove in criminal law. Not so in civil court.

A second point here is that I believe one needn't hope to only prove malicious 'intention'. I think it's quite possible that this case could be actionable on the grounds of NEGLIGENCE as well. Stated in legaleze: given the evidence at hand, should a reasonable person have given a 'fairer' presentation? (Obviously would rely upon the gravity of the unfairness in question: waaay unfair is a lot different than a little unfair.) Bottom line: intention is everything in criminal court. Not so in civil law.

Another point:

"But the Broadcasting Standards Commission had no such evidence. According to their own rules, they were only allowed to base their judgement on material collected for use in making the Horizon programme."

Of course, it will be well worth your time to get *very* clear on what the evidentiary requirements really are in this hypothetical civil case. As I recall Robert had raised the point, quite some time ago, that he had had extensive, exhaustive personal interviews with a certain Mr Hale and others *prior* to the show. Is this some of the stuff that the BSC could not consider? What else have you guys got that the BSC couldn't look at.

Graham (and Robert), I don't know how well-versed you are in these kinds of issues, but if you're not totally clear on these kinds of distinctions already, I would strongly advise that you seek to get clear on them asap (for your own peace of mind) from the best legal experts you can.

My approach would be to get clear on exactly what kind of evidence you can submit, then present that evidence to a buff lawyer with this question:

"Based on your professional understanding of how the burden of proof requirement plays itself out in civil cases, if I were to properly(!) present this evidence in a civil court, is there enough leverage here to show that the BBC (and/or whomever else specifically) exercised *unfair comment* in their Atlantis presentation, by intention or negligence."

A positive answer from counsel at this point should in turn lead to a discussion of how this unfairness affected your careers and the extent to which damages, actual or punitive are relevant.

Mark

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Subject Views Written By Posted
Legal Questions about Atlantis Reborn 272 mark grant 09-Dec-00 17:36
RE: Legal Questions about Atlantis Reborn 131 Derek Barnett 09-Dec-00 18:36
RE: Legal Questions about Atlantis Reborn 169 mark grant 09-Dec-00 22:57
RE: Legal Questions about Atlantis Reborn 162 Derek Barnett 10-Dec-00 14:24
RE: Legal Questions about Atlantis Reborn 135 Robert G. Bauval 09-Dec-00 19:02


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