Pulp the fiction? Piers Morgan v Earl Charles Spencer explained

Earl Charles Spencer’s memoir ‘Swan Song: Diana, My Sister’ dominated headlines this past week as it includes the Earl’s account of comments allegedly made by King Charles following Princess Diana’s untimely death.

Discussion of the new book shifted as the week progressed following complaints made by Piers Morgan. Morgan took exception to an allegation in the book concerning a story published by the Daily Mirror about Diana. Earl Spencer alleged that Morgan was the Editor of the newspaper when it published photographs taken of Princess Diana when she was exercising, dressed in a leotard, in a gym in 1993. The photos were published by the Sunday Mirror on 7 November 1993 and Morgan has pointed out that at that particular time he was actually still working for The Sun newspaper and didn’t join the Daily Mirror until October 1995. 

Morgan has stated that he’ll be pursuing legal action against the Earl and the publisher “to have the lies removed, and damages paid to the King’s Trust”.

While the King’s intervention to gainsay Earl Spencer’s account of their phone conversation was probably exactly what Penguin Random House might have hoped for in terms of generating interest in the book, Piers Morgan’s highlighting of factual errors likely wasn’t part of the PR plan.

The news of Piers Morgan’s complaint is interesting from a reputation management perspective and here Matthew Cleary from our litigation team has considered some of the libel law in play.

Early apologies in defamation proceedings

The Earl has been swift in apologising to Morgan over the claim in the book that Morgan was behind the intrusive photos published of Princess Diana. It’s important to understand that an early apology is relevant in defamation cases and can affect the damages ultimately awarded.

So, what might be going on behind the scenes of this reported defamation dispute?

Offer of amends

It’s possible that, given the Earl’s apology, he and his legal team are considering making a formal ‘offer to make amends’ using the procedure under Sections 2 to 4 of the Defamation Act 1996. 

The offer of amends procedure can be used before a Defence is filed in a claim for libel, such as the proposed action reportedly being pursued by Morgan. It involves the publisher of the alleged defamatory statement offering to make a suitable correction to the statement, issuing a sufficient apology to the aggrieved party and agreeing to pay the aggrieved party compensation and legal costs. 

If the aggrieved party accepts the offer, they can’t continue with the claim against the publisher of the statement. However, the Courts may still be involved in a more limited way in determining the appropriate level of damages, if compensation can’t be agreed. In assessing compensation, the Court will likely apply a significant discount of up to 50% to reflect the offer of amends. 

If the offer of amends isn’t accepted, it can constitute a complete Defence to a libel claim in respect of the publication in question but not if the party making the statement knew or had reasons to believe that the publication referred to the Claimant or was likely to be understood as referring to him and was both false and defamatory. Even if it isn’t relied on as a Defence, the offer can be relied on for the purpose of mitigating damages.  

Given that parties in all forms of civil litigation are required to consider engaging in alternative methods of dispute resolution to avoid protracted, expensive litigation, the offer of amends could be a sensible route to bring the matter to a swift conclusion. 

Mitigation of damages

If the Earl doesn’t make an offer of amends, the effect of the early apology could still mean that a Court would be persuaded to reduce the level of damages being pursued by Morgan. The rationale for this is that for a claim in libel to succeed, the Claimant (i.e., Piers Morgan) must show that the statement has caused or is likely to cause them serious harm. 

Case law explains that serious harm will be caused by defamatory statements where the statement would substantially affect the attitude of others towards that person. Would it tend to make them think less of the subject of the statement (in this case, Piers Morgan)? On the face of it, the false statement about Morgan could lower the public’s attitude of him for obvious reasons. However, the fact that the Earl apologised so quickly after the book was published means a Court might be likely to determine that any loss caused to Morgan by the statement has been mitigated by a swift apology and statement confirming it was inaccurate. This in turn would likely lead to a Court reducing the sum of any compensation pursued by Morgan.

Piers Morgan is a wealthy man and the amount of any compensation award is unlikely to be at the forefront of his mind. Instead, he’s probably focused on vindicating his reputation. Of course, there’s also no love lost between Earl Spencer and elements of the media.

Retracting statements

In addition to seeking compensation for damage to one’s reputation, Claimants in defamation proceedings may seek an order from a Court which requires the author of a statement to stop distributing, selling or exhibiting material containing the statement. 

Morgan has made it very clear that alongside the compensation he thinks he’s entitled to, he also believes that the first edition of the Earl’s book should be ‘pulped’ (withdrawn from the market and amended to remove the false statement regarding Morgan). This is the libel equivalent of a food product recall. It may be that Morgan’s headline grabbing criticisms mean his legal team doesn’t need to seek such an order as it has already been reported that the book will be edited in respect of the false statement about Morgan.

In the event that the book isn’t voluntarily edited and re-distributed, Morgan may be talking to his lawyers about pursuing an order from the Court requiring that sales of the book be paused until the false statement is indeed edited. Penguin Random House will be the organisation that may face the financial and logistical consequences of such an order if it’s obtained against them.  

Are the ingredients for a libel claim missing?

Although Morgan has been forthright in his criticism of the statement and his intention to pursue legal action against the Earl, the Earl’s swift response and apparent willingness to issue a correction may help to limit his exposure.

Despite the apology for “inaccuracy”, Earl Spencer’s position may be that the ingredients for a libel claim are actually missing and that Piers Morgan doesn't have a viable defamation complaint against him. 

Given that Morgan has said that he has now issued a legal claim, this could be the case — and Earl Spencer may intend to contest the defamation complaint. Further facts relating to the parties’ respective legal positions and the dispute generally will no doubt emerge in due course.

Talk to us

Our specialist reputation management lawyers have strong track records in securing significant damages, apologies, retractions and other orders to protect the rights of our clients. 

We can help you by correcting false statements and securing appropriate legal remedies such as apologies, corrections and take downs. We can also seek Court orders or settlements that best protect your reputation or that of your business.

We have extensive experience in supporting businesspeople, athletes, professionals and all manner of high-profile individuals and organisations.

Talk to us by giving us a call on 0333 004 4488, sending us an email at hello@brabners.com or completing our contact form.