Last week’s dispute between Piers Morgan and Earl Spencer over claims in Spencer’s memoir has put a familiar publishing question back in the spotlight: what happens when an author’s account is challenged? Carla Murray, partner and head of commercial at Slater Heelis Solicitors, examines the editorial, reputational and legal risks.
What has sparked the latest clash?
Piers Morgan announced he is taking legal action against Earl Spencer and publishers, Michael Joseph Ltd (an imprint of Penguin Books Limited, part of Penguin Random House Limited), alleging “demonstrable lies” in Spencer’s new memoir, Swan Song: Diana, My Sister.
Specifically, Morgan says the book (wrongly) attributes responsibility to him (as editor of the Daily Mirror) for publishing covert photographs of Princess Diana in a leotard exercising in a gym.
Morgan confirms that the photographs were published by the Sunday Mirror in 1993 and at that time he was actually writing a showbiz column for a rival newspaper, The Sun. Morgan states that the allegation is factually wrong and easily disproved.
Spencer has subsequently issued a public apology stating as a historian, “accuracy was important to him”, but he stands by his recollection that Morgan was “surly and annoyed” during a conversation in which Spencer told Morgan he was not to attend the late Princess’ funeral, something Morgan also denies and has taken issue with.
Morgan has demanded the book be edited to rectify the inaccuracies and that all existing copies are removed from shelves and “pulped” if necessary, promising to donate any damages to the King’s Trust.
What is defamation?
Defamation occurs when a false statement is published to a third party which lowers the reputation of the person referred to, in the eyes of right-thinking members of the public.
The statement must cause, or be likely to cause, serious harm to a person’s reputation. Under the Defamation Act 2013, a claimant must demonstrate a “serious harm” to reputation (and for businesses, that means serious financial loss). Defamatory can occur via print, broadcasts, or online media.
Because online content can be shared rapidly and reach a large audience, defamatory statements published on the internet can often cause significant reputational and financial damage in a short period of time.
Why do PR agencies and publishers need to take note?
This high-profile dispute is more than a celebrity spat; it highlights that the exposure is not limited to authors, as both publishers and PR professionals can also be sued.
Whilst Section 10 of the 2013 Act offers some protection to those who are not the primary author, editor, or publisher, that protection is limited, especially if your agency played an active role in shaping or disseminating the content, for example if you draft, approve, or pitch content that turns out to be defamatory, you could be named in a claim.
The importance of robust contracts
What should your contracts contain? As advisors to publishing houses and PR agencies, we recommend these key protections for managing defamation risk:
- Content warranties – The contract should require the author or client to warrant that all material provided is not defamatory, unlawful, or otherwise harmful, and that any opinions expressed are honestly held. Note – whilst this shifts responsibility toward the client, it does not fully absolve the publisher or agency. Publishers must still exercise editorial judgement and may have independent liability if they simply ignore obvious risks.
- Defamation indemnity – In addition to warranties, your contract should include an indemnity from the author/client protecting you from liability arising from defamatory material supplied by them (covering legal fees, court costs, and any damages awarded, as well as any reprint/recall expenses). However, a balanced indemnity will not protect a publisher or agency if they had actual knowledge of the risk or ignored obvious warning signs. Note – authors and their agents may resist clauses that appear to shift all risk and responsibility, especially for controversial or investigatory books or articles; a balance may need to be struck.
- Liability caps and exclusions – Set an appropriate cap on your liability and, where possible, exclude liability for indirect losses, reputational damage, and errors based on information provided by the client. Note – liability caps can be the subject of legal challenge if they are perceived as unreasonable or seek to exclude liability for deliberate wrongdoing.
- Approval and sign-off process – Build in a formal sign-off requirement so the client reviews and approves content before publication. This creates a clear record and can help strengthen your defence if litigation/disputes arise.
If a defamation claim materialises:
Prompt action is critical! The Pre-Action Protocol for Media and Communications Claims requires parties to follow a set process before litigation begins and early, constructive engagement can sometimes resolve disputes without court proceedings. The Defamation Act 1996 includes an ‘offer of amends’ procedure – allowing a publisher to offer to correct the statement, apologise, and pay compensation. If used properly, this may limit damages as a rejected offer may subsequently be relied on in litigation proceedings. Legal advice should be sought as to the most appropriate action to be taken in the circumstances.
Remedies for defamation include damages, interim or permanent injunctions (to prevent further publication), orders to remove or recall material and directions to publish the court’s judgment.
Defamation disputes are notoriously expensive, with the cost implications extending beyond legal fees,including reputational damage, withdrawal and destruction of material, and distracted management time, and, where an interim injunction is granted, campaigns may be suspended, delayed or withdrawn completely.
A cautionary note: delay can be costly. The longer and wider a defamatory publication circulates, the higher the potential damages may be. If a publisher is notified of an inaccuracy, failure to act swiftly to correct or remove the offending material, may lead to aggravated damages being awarded.
Check your insurance: media and professional indemnity insurance policies often cover legal and defence costs and some compensation or settlement payments. However, many policies limit of exclude cover for recall, pulping, reprinting or digital takedown costs. You should therefore regularly review the scope of your insurance cover and whether additional policies are available.
How Slater Heelis can help
We advise publishers, PR agencies and communication professionals on contract drafting, content clearance and defamation risk. Our litigation team can assist with early complaint negotiations through to contested proceedings. Whether you need your contracts reviewed or are facing a potential claim, get in touch – we can help.
Slater Heelis are also headline sponsors of this year’s Prolific North Live on 18 November in Manchester. Hear from them, brands and other experts this year across a jam-packed day.
