What writers and authors need to know
A SIMPLE GUIDE
What are defamation and libel?
Defamation is any published material that damages the reputation of an individual or an organisation. As well as books, this covers material on the internet as well as radio and television broadcasts – so even drama and fiction can be defamatory if they damage someone’s reputation.
You can only publish defamatory material if it comes within one of the recognised legal defences. If it doesn’t, the publication will amount to libel and you may have to pay substantial damages. Slander is ‘defamation by word of mouth’.
The purpose of libel law
Libel law protects individuals or organisations from unwarranted, mistaken or untruthful attacks on their reputation.
A person is libelled if a publication:
Exposes them to hatred, ridicule or contempt
Causes them to be shunned or avoided
Generally lowers them in the eyes of society
Discredits them in their trade, business or profession
The most important point is to make absolutely sure that what you are printing or writing is true. Do not make claims or accusations that you cannot prove. Even if you think you can do this, be cautious. Proving things in court can be very difficult.
And the test of what the words mean is what a reasonable reader is likely to take as their natural and ordinary meaning, in their full context – what you intended as the author or publisher is irrelevant.
If you write something that cannot be substantiated, the credibility of your site, organisation or cause may be questioned. It can also land you with an expensive lawsuit and there is no legal aid for libel cases.
The burden of proof lies with the defendant
Almost uniquely in English law, in libel cases the burden of proof lies with the author or publisher and not the complainant. In other words, you must prove that what you write is true. The person you’ve targeted does not have to prove that you’re wrong.
Three tips for writing safely
Don’t rely on the literal meaning. You cannot solely rely on proving that your statements were literally true if, when they’re taken as a whole, they have an extended, more damaging meaning. Also, for example, if somebody was guilty of fraud once, calling him a fraudster in a way which might suggest he’s still doing the same may well give rise to a libel which can’t be defended. Be especially wary when referring to events in the past.
Don’t exaggerate in your claims or language. For example, a company may run a factory which produces certain chemicals. For you to suggest that babies will be born deformed as a result may get you into libel trouble.
Innuendo can catch you out. Your comments may not appear particularly defamatory taken at face value, but greater knowledge of a person or situation may make it problematic because of the innuendo. To say Mr Jones doesn’t recycle his waste paper may sound harmless enough. But to people who know that Mr Jones is a Green Party activist, the innuendo of the statement is that he is hypocritical in his politics.
Common mistakes and assumptions
Repeating rumours. It is inadvisable to repeat a defamatory rumour unless you are in a position to prove it’s true. Even if you are contradicting the rumour you should not repeat it. And adding ‘allegedly’ is not enough to get you out of libel difficulties.
Quoting others. If you publish defamatory remarks about people or organisations made by other people you will be just as liable to be sued as they are. So if you can’t prove the truth of their statements, don’t repeat them.
Drawing unprovable conclusions. It is a common mistake to draw unverifiable conclusions from the basic facts. For example, if Mr Brown is seen going into a hotel room with a call-girl, this does not necessarily mean he enjoyed a ‘night of passion’, and will certainly not prove that he did.
Irresponsible adjectives. Be very careful about the adjectives you use. A misplaced word can result in costly action. If you are campaigning about a factory that releases chemicals into the atmosphere, referring to the factory as ‘poisoning the atmosphere’ is inadvisable.
Defences against libel
The law lays down a few ways in which defamatory publications may be defended. If the defences succeed, the publisher wins. But if they don’t succeed, the publisher loses: the complainant will have been libelled and will therefore be entitled to be paid damages and their legal costs. The defences are listed below.
First, justification. The most usual defence against libel is to prove that the information published is true. But this can be a dangerous route because an unsuccessful plea could increase the damages against you because you will have increased the harm to the complainant. And remember, you must be able to deal with every libellous possibility, such as inference and innuendo.
If your statement implies something greater, it is not enough to prove that the statement is just literally true. Merely asserting something will not be sufficient to prove that it’s true – you will need witnesses and documents to back up assertions (whether they’re yours or someone you’re quoting).
Second, fair comment. This covers content, mainly opinion, that cannot by its very nature be true or false. To be properly defensible, these comments must be: based on fact, made in good faith, and published without malice.
On a matter of public interest, in 2001, Daily Mail lost a libel action brought by the former Tottenham Hotspur chairman Alan Sugar over the remark that he was a “miser” when he ran the club because he didn’t give his manager enough money to buy top class players. The jury were not sufficiently persuaded that there was any factual basis for making this comment. They didn’t deem it fair comment. He was awarded £100,000.
Last, privilege. Privilege is the defence where the law recognises that individuals should be free to speak their minds (and others to report what they say) without fear of being sued even if they get their facts wrong. It allows people to speak freely in court proceedings and debates in Parliament, and allows for such proceedings to be reported, so long as the reports are both fair and accurate.
The Right to Privacy
Writers tend to think a lot about libel issues, but they would be well to consider privacy as well.
Human rights law give each of us a right of privacy, so even if you are not saying anything defamatory about me (so libel doesn’t come into it), you might nevertheless reveal enough about my personal life that I’d feel my privacy had been invaded. Under such circumstances, I would in theory have an actionable claim against you.
And, as it happens, we at Jericho Writers have never seen a book that was basically publishable, but which fell down on libel issues. We have seen examples of a book that was publishable, except for privacy issues.
The case I particularly remember was a really excellent and shocking memoir by a British-Asian woman who had been forced into an arranged marriage and had been very badly treated by both husband and mother-in-law.
The husband had in fact been charged with assault by a court, and convicted, so libel issues weren’t in play. The substance of the book’s allegations had been tested in court and upheld. The text was certainly defamatory, but it was most demonstrably true.
So the thing that broke the book – we got an agent for the author, but not a publisher – was the mother-in-law’s right to privacy. This awful woman, who had been highly complicit in her son’s abusive behaviour, nevertheless had a right to privacy that the courts might have been willing to uphold. So all the publishers contacted by the agent refused the book.
In my view, that was cowardly, but it’s an issue to think about before you embark on your project.
Libel & Privacy Law in the real world
Writers anxious about libel / privacy law can in most cases relax:
It’s exceptionally rare for a novelist to be sued for libel. As long as you are not obviously writing a roman a clef, your single strongest defence to any claim will just be to point to the way the book is categorised: “This is fiction, dummy.”
Let’s say you are writing and self-publishing a memoir, that isn’t vastly defamatory of anyone and isn’t very privacy invasive either. You do those real life people the courtesy of changing names and other details, so it’s not obvious who you are talking about. Let’s say you commission a print-run of 500 copies and sell a few e-books as well. Is it theoretically possible that you face a lawsuit for the issues talked about in this post? Yes. Is it practically likely? No. It will be, for most authors, a vanishingly small possibility
And if you are writing anything else non-fictiony, very much the same applies, at least 99 point something per cent of the time.
Yes, the conventional advice is “take legal advice”, but that advice will cost a minimum of $5,000 / £3,000 if you’re going to a properly experienced lawyer. So for most writers, the actual practical advice will be:
Proceed thoughtfully and with caution
Change names and other details. Make your characters actually different from the real world subjects.
Think about privacy as well as libel
Be realistic. If you are making serious comments about public people and your work is likely to have significant readership / impact, then you can’t wing it. In all other cases, then just take good care and you should be fine.
For what it’s worth, Iv’e written fiction and non-fiction and only once have my paths crossed with a libel lawyer (paid for by the publisher, not me.) I was working with a prominent hedge fund manager and his text made some quite serious allegations about (for example) the non-tax-paying habits of GE, the huge American manufacturer. (The text made quite a few allegations about quite a few companies and people; that libel lawyer had plenty to get his teeth into.)
The lawyer queried one particular point in relation to GE and said it was essential that we contact GE for comment. So we did. We sent the relevant bit of text to the head of Media Relations and asked for comment. He replied – quickly and with some heat – that the allegation was completely untrue and he rejected it completely. We responded by asking why, in that case, his company’s own annual report, in some deeply buried footnote, confirmed precisely the point we were making.
He withdrew his rejection (rather gracelessly) and it was pretty clear that the big bad wolf of GE wasn’t going to sue us, or would lose if it did.
The real point of all this is that you need to use your own real-world wisdom to make this calls, not just a reading of the law. If your book is going to sell enough copies to raise a real threat of libel / privacy claims, then you’ll almost certainly be working with a publisher resourced to deal with the issue. If your book is more of a private printing with a limited circulation, it’s conceivable but certainly not probable that any suit will come your way. Do the basics, and you should be fine.
We’re not lawyers. We haven’t read your book. We don’t know your situation. And pretty obviously, if you face some real legal issues, you need to get help from specialists who do know your situation. A blog post is not the same as a legal advisor.