It was hard to escape news of the highly-anticipated interview between the Duke and Duchess of Sussex and Oprah Winfrey last week. During the interview, Prince Harry and Meghan Markle made numerous serious and potentially damaging allegations against the Monarchy, including allegations of racism and callous treatment.
So far, the Monarchy’s response has been typically succinct. Will the Royals take any further action to protect their reputation, and could that include legal proceedings for defamation?
The Sussexes are no strangers to public lawsuits aimed at protecting their reputation. In November 2020, Prince Harry won a libel action against Associated Newspapers for publishing two articles that misrepresented his relationship to the British armed forces. The defendant was forced to issue a public apology and pay substantial damages. Ms. Markle later sued Associated Newspapers as well, following publication of a private letter she wrote to her father. She was also victorious, and the Court ordered the newspaper to publish a front-page statement acknowledging her win.
Will Prince Harry and Ms. Markle now find themselves defending claims for defamation or invasion of privacy?
The Monarchy has generally avoided becoming embroiled in any sort of public lawsuit, although over the years the Queen and other Royals have initiated proceedings against media publications for defamation and breach of copyright. If the Monarchy decides to launch defamation proceedings now, where would it most benefit them to do so—in the United States, where the interview took place, or in England, where the harm to reputation was most serious? Would they win in either jurisdiction?
American versus English Law: Free Speech or Protection of Reputation?
American defamation law prioritises free expression over protection of reputation. In contrast, English defamation law affords more protection to reputational standing. The most significant effect of this difference is in respect of is the ‘burden of proof.’ A defendant is not liable for defamation in either jurisdiction if the allegedly defamatory statement was true. However, the party responsible for proving the statement’s truthfulness differs between the jurisdictions. In England, there is a presumption of falsity, i.e., the defendant has the burden of proving that the defamatory statement was true. In the US, there is no presumption of falsity and thus the claimant bears the burden of proving that the defamatory statement was false. This alone means that England is a much more ‘claimant-friendly’ jurisdiction for defamation claims.
Another important distinction between American and English defamation jurisprudence is whether ‘public figures’ bear a higher burden of proof than an ordinary claimant. In the US, a public figure faces a higher standard of proof than normal claimants because he or she will have to show that the defendant knew the statement was false or had a reckless disregard for the truth. This is not a required element in England. The Royal Family are clearly ‘public figures,’ and, therefore, would do better avoiding the higher burden of proof they would face if they brought a defamation claim in the US.
Of course, public opinion, to the extent that it might have any impact on legal proceedings, clearly favours the Monarchy in England, whereas Prince Harry and Ms. Markle received a more sympathetic response from Americans. Indeed, the majority of UK press has excoriated Ms. Markle for her interview and sought to point out inconsistencies in her statements. In contrast, leading figures in the US like Beyoncé and others have come out in favour of Ms. Markle, arguing that the Royalty is an antiquated and racist institution and praising Ms. Markle for discussing her struggles and for publicly ‘taking on’ the Monarchy.
In the light of the above, if the Monarchy was minded to commence proceedings against Prince Harry and/or Ms. Markle for defamation, they would be more likely to succeed if those proceedings were brought in the English courts rather than in the US.
A Royal Flush: Would the Royals Succeed on a Defamation Claim?
Assuming that the Royal Family brought a defamation claim in the English courts, would they win?
Such a claim would face significant hurdles.
- Prince Harry and Ms. Markle would likely assert a truth defence which, if successful, would defeat any defamation claim and create additional public relation troubles for the Royals.
- Prince Harry and Ms. Markle’s purportedly defamatory statements did not actually refer to any particular individual. Who then was defamed?
Because the allegations generally referred to the ‘Royal Family’, the ‘institution’, or the ‘firm’ rather than to any particular individual, the Royal Family would have to sue as a group, on the basis that the allegations defamed the Monarchy, collectively or as a unit. It is not entirely clear that the Royal Family could rely on this argument.
The English courts have permitted defamation claims by corporations, partnerships, and even looser collections of individuals like trade unions on the basis that the reputation of the collective group was harmed by a defamatory statement. However, the looser the definition of the ‘group,’ the more difficult the claim. Thus, a single un-named Premier League player could not sue in relation to defamatory comments about the Premier League as a whole. It is an open question whether the Monarchy constitutes a group which could bring a collective defamation claim.
Prince Harry and Ms. Markle might also be able to raise the defense that they reasonably believed their statements were in the public interest. This is a good defense to defamation in the UK although it may not succeed here the couple’s statements dealt more with the private actions of the Royals. English courts typically do not consider statements regarding private lives to be a matter that concerns the public’s interest.
Our view is that a defamation claim by the Royals would be difficult but worth pursuing.
Even if the claim would be unlikely to succeed at trial, both sides would have sufficient risk that may pressure them to reach a compromise that would restore the Royal Family’s reputation without besmirching Prince Harry and Ms. Markle.
Perhaps they could agree on a joint public statement which ‘corrected’ Prince Harry and Ms. Markle’s statements without deeming them false and which helped to clarify any varying recollections.
Thinking Beyond Defamation: Possible Privacy Claims
If the Royals did bring a claim for defamation, it would be sensible if they combined that with other claims dealing with the right to privacy. These would likely include claims for misuse of private information and/or breach of confidence. Ms. Markle and Prince William have both asserted these sorts of claims in lawsuits against the press. Thus, even public figures can bring these claims if they can show that there was a violation of their “reasonable expectation to privacy.” Part of the interview’s shock value was the fact that Prince Harry and Ms. Markle spoke about private matters within the Royal household.
Is a Royal Legal Battle on the Horizon?
Concerns about public impression will likely prevent the Royals from making a private family dispute into a public legal battle. Such a trend is observable in the aftermath of the Princess Diana’s 1995 interview.
Although it is doubtful that the Royals will file legal action against Prince Harry and Ms. Markle, further breakdowns in the relationship may persuade the Royals to bring legal claims for defamation and/or breach of cause. to restore its reputation, which, has been put at risk by last week’s events.