Hilary Mantel and the Duchess of CambridgeThe rule of thumb that the Royals don’t sue is not a matter of strict legal advice (Prince Charles has seen to that) – but it is trite law that dead Royals don’t sue, and certainly not in defamation cases. Hilary Mantel may be safe from a writ from Anne Boleyn or Princess Diana, but could she expect a claim from the Duchess of Cambridge – assuming she is a living legal person, and not a plastic doll?

Twitter is the pre-eminent forum for libel and slander of the modern age. Ms Mantel may not have been addressing the Twittersphere at large when she delivered her London Review of Books lecture to a small crowd of tweed-coated academics; but she should have been aware of what was lying in wait, even before the publication of the text on the LRB website. It was a small step from there to the Daily Mail Online, from where all hell can break loose – and usually does.

The anticipated reform of the rules on libel publication for the internet era should not be confused with the enduring principle that the original maker of defamatory remarks is potentially liable for their foreseeable re-publication (just ask Victoria Beckham). But that is not to say that the original context of the publication is not relevant to the meaning of the words. The notorious ‘Harold and Madge’ case reinforced how a publication must be seen in its full text and setting. The law does not take account of the impression formed by a ‘moron in a hurry’ – say, a Prime Minister too busy to read anything but a digest handed to him by an aide.

It is open to question whether a Court would apply a higher intellectual standard of ‘ordinary reader’ to a chin-stroking lecture hall audience or user of the LRB website, in terms of their ability to dissect and contextualise the Wolf Hall author’s assessment of the Duchess through the glass of Tudor history. But it seems clear enough that the Court would not hold her responsible for any misrepresentation of her remarks by third party editors (or Twitterati) who did not give phrases like “plastic Princess”, “a jointed doll” or even “a Royal vagina” their proper context.

It is in fact debatable that the words themselves would be held defamatory – though they ought to be seen in the fullness of her public role and duties, and how she might perhaps be shunned as a result. Steven Berkoff’s preliminary finding at the Court of Appeal that it was potentially defamatory, as an actor, to be described as “hideously ugly” – while dubious (see Lord Justice Millett’s dissenting judgment) – remains law. That said, the law makes presumptions in the Claimant’s favour when the defamation goes to their profession or living: it might be debatable, politically, whether this applies to being a princess.

Though sniping columnists have portrayed the author as anything but fair herself – at least by unfavourable comparison to the not-so weighty Katy – it is likely that a ‘fair comment’ defence would be available to Ms Mantel in any case. There is an underlying factual matrix to her comments which, given her celebrated levels of historical research, she could easily back up. She made it clear enough that her observations were a matter of academic opinion, a mere literary conceit: “It’s rather that I saw Kate becoming a jointed doll on which certain rags are hung,” she mused. “In those days [as a Royal Bride] she was a shop-window mannequin, with no personality of her own.” Anyone who has sat through a university arts lecture chewing their thumbs will recognise the style and tone.

It is equally clear that Ms Mantel’s target was not so much Kate the person as Kate the media creation, or Kate the cultural position: as such, the ‘sting’ was directed at historical sexism in both the institution of Royalty, and the press (“…the press will find that she is radiant. They will find that this young woman’s life until now was nothing, her only point and purpose being to give birth.”). This may of course explain why sections of the press were so unforgiving to the author (a point made by others already).

While certainly indelicate, to conclude that “a Royal lady is a Royal vagina” is not, in context, to call Kate nasty names. Should it appeal to Ms Mantel, a defamation lawyer might take more interest in her own claims against the newspapers and Tweeters who have misrepresented her as “vicious” and “venomous” and being motivated by jealousy and ugliness, inside and out. Certainly it is Ms Mantel who seems to have been held in lower esteem and widely shunned as a result of this manufactured furore.

Owen O’Rorke is an Associate at M Law LLP

This post was originally published on the M Law LLP website and is reproduced with permission and thanks