Prince Harry establishes defamatory meaning – but there’s still a long way to go
12/07/2022
Following a preliminary hearing back in June, the judgment on preliminary issues has now been handed down in the case of The Duke of Sussex, Prince Harry, against Associated Newspapers Limited, the publisher of the Mail on Sunday and Mail Online.
The case came about following the Mail’s coverage of the Judicial Review proceedings being brought by Prince Harry in respect of a decision not to provide him and his immediate family with security when they are in the United Kingdom. The Mail on Sunday’s coverage included the headline: “REVEALED: How Harry tried to keep his legal fight over bodyguards secret….then minutes after MoS broke story his PR machine tried to put a positive spin on the dispute”.
As has become normal practice in libel claims in England & Wales, rather than the case steaming full speed ahead to a trial, the Mail asked the court to rule on the meaning of the words and whether they were defamatory at common law, prior to the defendant filing a defence. They also asked for a ruling on whether the words were statements of fact or expressions of opinion.
This process means that both parties know what the words in question are deemed to mean and can argue their cases accordingly from an early stage of the process, rather than trying to establish their case on what they think the words mean, only for a Judge to decide the actual meaning at a later stage.
The task for a Judge is to establish the single “natural and ordinary” meaning of the words, then make a decision as to whether that meaning is defamatory at common law – does it lower the claimant in the estimation of right-thinking members of society? And if so, would it tend to have a substantially adverse effect on the way the claimant would be treated? At this point, the Judge can also decide whether the words complained of are statements of fact or expressions of opinion, which can have a significant impact on the possible defences available to the Defendant.
In this case, Mr Justice Nicklin decided that the words in question mean:
- In his Judicial Review claim, Prince Harry initially “sought confidentiality restrictions that were far-reaching and unjustifiably wide and were rightly challenged by the Home Office on the grounds of transparency and open justice”;
- “the Claimant was responsible for public statements, issued on his behalf, which claimed that he was willing to pay for police protection in the UK, and that his legal challenge was to the Government’s refusal to permit him to do so, whereas the true position, as revealed in documents filed in the legal proceedings, was that he had only made the offer to pay after the proceedings had commenced”; and
- Therefore, Prince Harry “was responsible for attempting to mislead and confuse the public as to the true position, which was ironic given that he now held a public role in tackling ‘misinformation’”.
Further, Mr Justice Nicklin found that the statement that the confidentiality restrictions sought by Prince Harry were “far reaching” and “unjustifiably wide”, and were “rightly” challenged by the Home Office were statements of opinion. The meaning expressed at point 3 above, was also deemed to be a statement of opinion. The rest of the meanings were found to be statements of fact. This distinction is obviously important because of the potential availability of the ‘honest opinion’ defence in respect of statements of opinion.
Mr Justice Nicklin went on to find that all 3 meanings outlined were defamatory of Prince Harry at common law, although he noted that it was only just the case in respect of point 1. Whilst the meaning outlined at point 2 would not be defamatory at common law on its own, when taken with the criticism outlined in point 3, it was found to pass the threshold.
Obviously, as we all know, establishing that the words bear a defamatory meaning at common law is just the first hurdle. Since the implementation of the Defamation Act 2013, a Claimant must also establish actual or likely serious harm, and even then, the Defendant can attempt to employ a number of defences to defeat the claim.
So what can we take away from this judgment on meaning?
One of the submissions by Prince Harry’s counsel was that the meaning of the article was that Prince Harry was attempting to keep the whole legal case a secret, when in fact he was only seeking confidentiality restrictions in respect of certain documents and witness statements. Mr Justice Nicklin rejected this argument on the basis that although the headline might give that impression when read in isolation, the correct impression is given when the article is read as a whole.
This is a reiteration of the well-established legal principle that you cannot ‘cherry-pick’ when it comes to establishing meaning; the publication must be read as a whole.
Another key point made in the judgment is that the article is not deemed to have accused Prince Harry of “lying” – Mr Justice Nicklin states that the “hypothetical ordinary reader would understand the difference, as a matter of fact, between ‘spinning’ facts and ‘lying’”. The former being a “concept familiar to readers”, when true facts are presented (often with the omission of other facts) in a way that is “designed to give a positive message but which, overall, is apt to mislead”.
The judgment went on to say that whilst some people might use their own value judgement to consider that “spinning” was tantamount to “lying”, the article was clearly accusing Prince Harry (through his “PR Machine”) of spinning, rather than lying. This is an interesting distinction and whilst clearly an allegation of “lying” has a higher level of meaning than “spinning”, care should still be taken as an allegation of “spinning” can still be deemed to be defamatory at common law.
Another argument put forward by the defence was that the hypothetical reader would not associate the allegations being made with Prince Harry personally, and that the criticism was only of his “team”. This argument was rejected by Mr Justice Nicklin, who ruled that if the allegations were being made against the “team” rather than Prince Harry, that would have been made clear - “the natural reaction of the reader would be that the Claimant was responsible for the public statements issued on his behalf”. Whilst this point might seem obvious to many, it is a useful one to remember.
The case still has a long way to go, but we will continue to watch with interest. The next step - Associated’s defence.