Is Defamation Law (unintentionally) Racist? – Colette Allen

The case of Duchess of Sussex v Associated Newspapers has sparked a conversation in the UK in recent months about whether coverage of Meghan Markle was racist. This epiphany was not new to 2020; Prince Harry noted the racial undertones of comment pieces on Ms Markle when he first announced the couple were dating.

The British Press has described Ms Markle as “(almost) straight outta Compton”, othered her by discussing her “exotic DNA”, and criticised her for doing the same things for which Kate Middleton was praised. When the Sussexes decided to step back from their roles as “senior royals” and live financially independent in North America, Ms Markle was blamed as the deciding voice (“Megxit”) rather than it being presented as a joint decision by the couple.

The Duchess of Sussex claims for misuse of private information, infringement of copyright and breach of the Data Protection Act 2018 following the publication of excerpts from a private letter she sent to her father. This story appears to have been the straw that broke the camel’s back, as is evident in the (now struck-out) allegation of dishonesty and malicious intent on the part of the Defendant, who the Claimant alleged had “an obvious agenda of publishing intrusive or offensive stories about the Claimant intended to portray her in a false and damaging light.”[1]

With the law as it stands, Ms Markle had to wait for an overt violation of her right to privacy before she could bring a legal challenge, limited to privacy and copyright law. This begs the question, is defamation law failing people of colour and other disadvantaged groups? If you are the victim of racist abuse, your only recourse (hate speech) requires a criminal standard of proof, while if you are the perpetrator accused of racist abuse, you have a civil remedy. Defamation law is able to protect individuals who have been accused of being a racist; Greenstein v Campaign Against Anti-Semitism [2020], Tilbrook v Parr [2012], Hays Plc v Hartley [2010].[2]

The subject of defamation law is the reputation of the individual. This means it is not primarily equipped to deal with collective aspects of identity, such as race.[3] Perhaps this is because the “ordinary, reasonable reader” has neither race nor gender: a construct recognised as potential problematic “in key contexts that involve ‘culturally polarized understandings of fact’”.[4] In seeking to universalise the human experience, the hypothetical referee at the centre of defamation law overlooks and erases differences.[5] The Supreme Court in Stocker v Stocker [2019] highlighted the importance of context for the reasonable reader in relation to social media. I submit that the reader’s race also forms part of this context.

Racial undertones of comment pieces will influence readers of different races in different ways. For many white Britons, the persistent othering of Ms Markle makes it easier to criticise and scorn her. ‘Reputation’ is understood in a broad sense as something comprehending all aspects of a person’s standing in the community, Berkoff v Burchill and Another [1997]. In the same way that calling someone “hideously ugly” others them with the result that they are exposed to ridicule, presenting Ms Markle as different, an outsider, opens the door to opinions that she is an imposter, fraudulent and power-hungry. Despite never having met her, people find her “awful, woke, weak, manipulative and spoilt.”

The racist abuse of trolls shows that race plays a part in people’s contempt for Ms Markle. Sustained, racially-derogatory descriptions of Ms Markle by British publications have worked to “exclude (her) from (British) society,” as the Sussexes now attempt to build a new life in North America.[6] By applying Berkoff, it is theoretically possible to mount a defamation claim against certain players in the British tabloid press who have weaponised Ms Markle’s race against her by using it as a tool to lower her reputation among the British public.

This is an academic exercise, acknowledging that a trial on racist defamation would likely fail on the precision of the imputations, which are often deliberately vague. Still, it highlights that, with the law as it stands, it is defamatory to call someone a racist but one cannot be defamed by racially-undermining remarks. In 2021, this is not sustainable.

Colette Allen is the host of Newscast on Dr Thomas Bennett and Professor Paul Wragg’s The Media Law Podcast (@MediaLawPodcast).

[1] These allegations were struck out for being “irrelevant” [46, 57, 62], “vague” [58] and “inadequately pleaded” [48], Duchess of Sussex v Associated Newspapers Ltd [2020] E.W.H.C (Ch) 1058

[2] It is worth noting that the court found in favour of the defendants in all three of the examples listed. This piece does not suggest that the courts themselves are racist, but that the framework of defamation law is one-sided; Greenstein v Campaign Against Anti-Semitism [2020] EWHC 2951; Tilbrook v Parr [2012] EWHC 1946 (QB); Hays v Hartley [2010] EWHC 1068 (QB)

[3] David Rolph, ‘Racial Discrimination Law as a Means of Protecting Collective Reputations’ in Matthew Rimmer (ed), Indigenous Intellectual Property: A Handbook of Contemporary Research (Edward Elgar, 2015) at 477–78

[4] Martha Chamallas, “Gaining Some Perspective in Tort Law: A New Take on Third Party Criminal Attacks”, Lewis and Clark Law Review Vol. 14:4 [2010] at 1351

[5] David Rolph, “Defamation, Race and Racism”, Australian Feminist Law Journal [2020] at 6

[6] Berkoff v Burchill and Another [1997] CA (civil) E.M.L.R 139 pp.1, 6