L is for Libel

by Steve Laube

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 To libel someone is to injure a person’s reputation via the written word (slander is for the spoken word). I wrote recently about Indemnification but only touched on this topic. Let’s try to unpack it a little further today.

First, be aware that the laws that define defamation vary from state to state, however there are some commonly accepted guidelines. Anyone can claim to have been “defamed,” but to prove it they usually have to show that the written statement is all four of the following: 1) published 2) false 3) injurious 4) unprivileged.

The first is obvious. Posting something on Twitter or Facebook is “published.” And yet two weeks ago a Federal judge ruled that a blogger has the same defamation protection as a journalist. (Read the article here.)

The second means that what was written was wrong. This means writing something untrue. Simply being mean or snarky is not being “false.” I might feel defamed if you write that I’m an idiot but it doesn’t mean you were wrong.

Third, the person claiming they were defamed has to prove they were hurt by it. The person lost out on a freelance job; was shunned by church members; or was harassed by the press because of what was written. The burden of proof is on the defamed party. Last week J.K. Rowling, famous author, sued a newspaper in England for libel, for an article that “caused distress.”

Last is unprivileged words. My understanding is that this was originally defined, in part, to protect someone on the witness stand in a trial or giving a deposition. We want a witness to tell everything as they understand it without fear of saying or writing something defamatory. A legal testimony would be considered privileged. Writing something injurious and false on your blog is not privileged.

One other nuance to consider. A government official or a famous person has a higher burden of proof for defamation than the average person. When government officials or a famous movie star or a famous athlete are accused of doing something wrong they have to prove all of the four above elements of defamation and they must also prove that the writer acted with “actual malice.”  The definition of “actual malice” was outlined by the Supreme Court case decided in 1988 in the famous Hustler magazine versus Jerry Falwell case.

If you are writing something controversial or something that could possibly have someone sue for libel your publisher may add a clause to your contract that allows them to have a legal reading of the manuscript and ask you to make changes. The clause, in part, looks a little like this:

If, in the opinion of the Publisher, the Work contains material which may involve the Publisher in litigation, the Publisher may elect to engage outside legal, professional or technical expert(s) to review the manuscript. … If the Author refuses to make such changes as are advised by the Publisher or its reviewer(s), the Publisher will have no obligation to publish the Work, and will have the right to terminate this Agreement…

Hope this short overview was helpful. These are the broad strokes on the topic. If you want more, read this article on The Legal Guide for Bloggers site. Or see this online slide show for the Carol Burnett versus The National Enquirer case.

Publishing A-Z series:
A is for Agent
A is for Advance
B is for Buy Back
C is for non-Compete
D is for Dispute Resolution
E is for Editor
F is for Foreign Rights
G is for Great
H is for Hybrid
I is for Indemnification
J is for Just-in-Time

12 Responses to L is for Libel

  1. Elaine Marie Cooper February 3, 2014 at 6:46 am #

    Very thought provoking. This is excellent wisdom to encourage caution in both non-fiction writing and blogging. Thank you for addressing this issue. I’ll share this information with my Word Weavers group.

  2. Sally Bradley February 3, 2014 at 9:44 am #

    Thanks for sharing this, Steve. I have a question that relates to fiction. What about creating villains who work for real companies? In my book I have a pro athlete who isn’t a good guy. Would it be okay to say he plays for an actual team? Or do I have to make up a fake team to protect myself?

    • Steve Laube February 3, 2014 at 10:14 am #

      Best to avoid putting them on a real team since you are writing fiction. It would be an unnecessary distraction from the story itself. For example, in the novel THE NATURAL by Bernard Malmud the baseball player is on a team called the New York Knights. (By the way, the book is quite different from the Robert Redford movie, to the point that they are almost two contrasting stories.)

      • Sally Bradley February 3, 2014 at 11:53 am #

        Thanks for the reply, Steve. I guess I’m one of those who likes to see real teams mentioned, but in this case I’ll make up a new name for the team.

  3. Wendy Lawton February 3, 2014 at 3:17 pm #

    Great information, Steve.

    A book every writer should have on his shelf is Lloyd Jassin’s The Copyright, Permissions and Libel Handbook. It works like the Chicago Manual of Style with each chapter, section and specific question numbered for easy look-up and citing.

    • Steve Laube February 3, 2014 at 3:32 pm #

      Excellent suggestion Wendy. Thank you.
      We agents tend to read these kind of things… (makes us a lot of fun at parties.)

      Another is a recently published (August ’13) fourth edition of The Writer’s Legal Guide, by Tad Crawford and Kay Murray.

  4. April Gardner February 3, 2014 at 4:42 pm #

    Oh, good topic! I have a question sorta along the lines of Sally’s.
    What about using an actual historical figure as a villain in a novel? Any chance their ancestors have a right to sue over something they deem casts their beloved great-great in a bad light? For the most part, I stick with history and only use historical figures who are portrayed by historians as shady individuals. But what if I stray from that and make Jaqueline Kennedy a thief (as a far-fetched example). How much license do we historical fiction authors have?

    • Steve Laube February 3, 2014 at 4:49 pm #

      Read this brilliant answer from professor Ron Hansen in his speech on “The Ethics of Fiction” (found at http://www.scu.edu/ethics/publications/submitted/fiction.html)

      He answers your question on libel in fiction better than I ever could.

      • April Gardner February 3, 2014 at 5:00 pm #

        Excellent. Very helpful. Especially since it lets me off the hook. ;-)
        Thank you!

      • Kathleen Freeman February 7, 2014 at 1:59 pm #

        Excellent info! Thank you, Steve. Your post has soothed my concerns. The article not only answered my questions, but also happened to have a helpful bit right in the opening line. Blessings to you!

  5. Catherine Hackman February 4, 2014 at 6:37 am #

    Thank you, Steve. My aunt is dying of liver failure. She wants me to write a short article about her and post it on my blog to help others who might face the same condition. I was afraid to do it because other family members might sue me after she dies. This article helps a lot.

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    […] is libel? Literary agent Steve Laube explains in his excellent article “L Is for Libel.” And Wendy Lawton, also a literary agent, breaks it down even further for anyone who’s […]

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