The story circulating that Queen Elizabeth has been “lawyering up” ahead of the publication of Prince Harry’s memoir, which is not due to be released until late 2022, is ludicrous, How? Let us count the ways.
Libel and Slander Must Arise From a False Statement of Fact; Opinions Do Not Count
People (and princes) are allowed to state their opinions without being sued for defamation. Libel is the written form of defamation and slander is the verbal form. Harry and Meghan can say that royals are insensitive, unsupportive, mean or even racist. That’s all opinion. It’s not actionable.
Think about it. What has Harry said that is actually a fact, subject to proof? Not much. Meghan revealed that someone wondered about the skin color of their child-to-be. But she didn’t identify the person. Everyone made guesses about who said it, but a defamation action requires that the subject of the defamation must be identifiable. Everyone must know or be able to deduce with certainty that you are the person defamed. We never knew who asked about Archie’s skinIf color. Some thought it was Prince Philip, but Harry and Meghan denied that. Many thought it was Prince Charles, but there were other guesses. A Vegas bookie could take odds on who made the offensive utterance, but no one knows for sure whom Harry and Meghan were accusing. That means they can’t be sued for defamation, because the subject of the slander could not be identified with certainty.
If Harry makes similarly uncertain assertions in his book, no lawyer can do anything about it.
Let’s take another example: Harry said that Prince Charles refused to take his calls and cut him off financially. Those are facts, but can they be proven or disproven? How can we possibly prove that Prince Charles did not refuse to take Harry’s calls? Do we subpoena Charles cell phone? Even if we do, there is no history of whose calls were blocked and whose weren’t. If Harry called Charles’ landline, how do you prove that Charles wouldn’t come to the phone? Do you make the butler Jeeves take the stand and have him declare, “I always put Master Harry through to Prince Charles immediately!” Even if he did, who says Jeeves is credible. If you can’t prove the statement is false, you can’t have libel or slander.
There are some things that Harry and Meghan can prove. For instance, Meghan can prove that she is not the one who decided that her name should not appear on Archie’s birth certificate. But most things aren’t subject to proof.
Harry said that Charles cut him off and I think you can produce financial records that can prove whether Charles did or did not, but is Charles really going to whip out his bank statements to win a defamation suit against his son? Secondly, it has been established that at some point (maybe not as soon as Harry implied), Charles did stop providing Harry with financial support, but how do we know if he did it because he was in a tizzy or if he did it because Harry said, “Hey Pops. I snagged this juicy deal with Netflix and I no longer need your dough.” If the money stopped going out to Harry and Meghan, Charles can’t prove why it stopped. He can’t show that Harry asked him to stop giving him money and was not “cut off.” Most of the things Harry writes will be only he said/she said in nature. A libel suit needs objective verification that the publication was false. It’s not libelous just because it makes the royal family look bad.
Furthermore, to the extent that any of this could be proven, the royal family is not going to expose private, intimate details of their lives just to hold Harry’s feet to the fire, in a court of law. As embarrassed as they might be about anything Harry might say, they’d be more embarrassed to engage in a public war with him and to present the receipts (proof) that would be required to disprove anything that Harry claims. The Queen is not going to whip out her diary and recite what she wrote on January 3, 2019 to prove Harry’s lying scum.
But Harry and Meghan have not been specific enough to be called liars about most things. They have not laid anything out explicitly. They imply. They insinuate. They cast shade. Shade is not libel or slander. Libel and Slander must be solid, tangible, express. It requires fact, not suggestion.
Then too, what could a lawsuit accomplish that a public correction couldn’t? In the Oprah interview, Meghan conflated two things that should be separate and distinct. She complained that her child was denied the title of “Prince.” However, that is not uncommon. Queen Elizabeth’s niece and nephew, David and Sarah Armstrong, are not styled as “Prince” and “Princess” either. Why should Prince William’s niece and nephew be titled? It would be unusual for someone in the second generation from the throne, who is not directly in line to it, to be called “Prince” or “Princess.” The Queen can point this out and give numerous examples. She can minimize and refute claims about the title being denied to Harry’s children without an attorney.
Meghan said that it is only the royals with a title who receive security protection. If that’s not true, if a title is not necessary for security protection, then the royal family need only say so. No need to sue.
The truth is, Harry has been so vague about who said what and exactly what who said, that any defamation suit would quickly collapse. Defamation takes detail. Factual detail. The statements made that will be matters of fact and not mere opinion, will either be incapable of proof or will be relatively inconsequential. Defamation requires harm. No harm, no libel.
Defamation Requires Harm to the Subject
The subject of defamation must prove harm in order to state a claim. There must be proof of actual damages. How would the Queen be able to prove damages? Will Harry badmouthing her cause her to lose a few castles? Could she show that the number of people who want to do away with the monarchy increased after Harry snitched?
Where’s the documentation of damage? There are some things, crimes for example, that the law accepts as damaging without proof. If you are falsely accused of murder, rape, or robbery that hurts your character in ways so obvious that you don’t have to explain it. If Harry falsely claimed Uncle Andrew was a pedophile, that would certainly be libelous. But we know that is never going to happen.
Lesser (non-criminal) forms of defamation require proof of damage that the Queen wouldn’t be able to cough up. What would Harry’s lies cost her? If her loss is not quantifiable, then there could be no lawsuit, because there’s nothing to recover. No judgment could make her whole or compensate her for intangible injuries.
Identification
As discussed above, it is unlikely that Harry intends to completely take off the gloves when making disclosures about his family. If next year’s book is anything like his behavior has been in the past, the negative things he writes will be too nebulous in nature to give rise to a libel suit. If Harry complains about the royal family and its bureaucracy as an institution, as “The Firm,” that is not defamatory under the law. The law requires sufficient identification of the defamed person. Entities cannot be defamed. An indistinct mass of people cannot be defamed. If Harry writes, “the royals are evil” who exactly would that statement include? Charles and the Queen, sure, but what about Anne and Edward and their kiddos?
So, what if he’s snide about a balcony full of Windsors. You have to be able to specify who the subject matter of defamation is. Harry cannot be liable for libel, just because he complains about royal life, in general.
Who Has the Queen Ever Sued?
The Queen ain’t Donald Trump. She doesn’t sue anything with a pulse. She has sued the Sun publication for copyright infringement over a stolen photograph and stolen transcription of a broadcast. But any information that Harry has to leak about the family probably won’t have been pilfered and I doubt they had him sign an NDA, when he was born into the brood, although it might not be a bad idea to make Lilibet sign one now. Get ’em while they’re young.
The palace is reluctant to litigate and they are unlikely to angrily engage with Harry (or his publisher), of all people. The scandal such a suit would cause would be far greater than any libelous statements Harry might make.
Why should he lie anyway? The inside truth is probably far more damaging than any lie could be. No fabrication needed. A real behind the scenes is sufficient. The truth hurts and is, alone, enough to sell books. Truth is a defense to libel.
Don’t believe the headlines. First of all, a lawsuit against the publication of Harry’s book would be legally unsound. Secondly, a legal battle pitting blueblood against blueblood would hurt the monarchy, more than any book could. It’s unlikely that Queen Elizabeth will be treating Harry like a red-headed step-child (or grandchild) any time soon.