Avoid Defamation of Character
How to Write a Story without Getting Sued
Avoid “defamation of character” law suits! Understand what is libel; the difference between libel and slander; libel definition and defenses like absolute privilege, qualified privilege and fair comment.
All this and more, below…
Avoid Defamation of Character Suits #1
Here’s a writer’s nightmare: you create a fictitious character, one you sincerely believe exists only in your own imagination. You get your story published and, the next thing you know, you have this irate reader threatening to sue – because he/she believes the character refers in a defamatory way to him/her.
Before this happens to you, before you even begin writing your book, take these pre-emptive measures…
Avoid Defamation of Character Suits #2: Know the Law
To avoid defamation of character, you must be aware of what constitutes defamation in the first place.
Defamation is a general term encompassing slander and libel. Libel is defamation recorded in writing, print, picture, film or radio/television broadcasts. Contrast this with slander, which is oral defamation; for example, what one person says about another.
To succeed in a defamation of character suit, a claimant must prove that false defamatory statements have been made and published about him/her, and that these statements have harmed his/her reputation.
Obviously, if your book is going to be distributed to readers, there’ll be publication. Questions would then arise as to whether you’d made defamatory statements; whether the claimant can be identified as the person referred to in these statements; and whether these statements tell the truth about the claimant. Let’s look at each of these in turn…
Avoid Defamation of Character Suits #3: Avoid Making Defamatory Statements
Steer clear of defamatory statements especially when you’re writing about real-life people or incidents, or when your characters can be identified with actual persons: for example, when you’re writing a biography or using actual towns or events for your story setting.
To avoid making defamatory statements, you need first to know what kind of statements are defamatory in law. As a general rule, words and statements convey a defamatory meaning if they tend to lower a person in the estimation of right-thinking members of society, or if they tend to make people shun or avoid him/her.
Words may be explicitly defamatory in their natural and ordinary meaning; for example: John is a crooked, thieving scoundrel. Or they may be defamatory by inference or innuendo; for example: This is the house that Jack built, where the walls later collapsed – the inference being that Jack is an incompetent builder.
Avoid Defamation of Character Suits #4: Examples of Defamatory Statements
Words imputing moral turpitude or implying that a person is insane are defamatory: for example, calling a person a swindler, pedophile or drug addict, or implying that he/she has embezzled money or escaped from a mental hospital.
Words are also defamatory it they tend to injure a person’s reputation in relation to his office, profession, calling or business; for example, allegations that a head of state lacks ability to lead the country, or that a doctor is incompetent, or that a businessman is dishonest in his dealings. However, it is not defamatory to say that a business has closed down (although if this turns out to be a false statement, the proprietor may sue for injurious falsehood).
Avoid Defamation of Character Suits #5: Avoid Identification with Actual Persons
Defamatory statements that you make about your story character may be taken to refer to an actual person when the circumstances in that person’s life are sufficiently similar to your character’s, as to reasonably lead readers to believe you’re referring to him/her. It is not necessary that the names should be the same or similar.
This throws open the possibility of inadvertent defamation: where you create a character who, unknown to you, closely resembles an actual person – and the circumstances in this person’s life are coincidentally similar to those in your story.
How do you avoid inadvertent defamation of character? Here are some precautions you can take…
Avoid Defamation of Character Suits #6: Check All Names
Don’t name your characters after any living persons, especially if they’re famous or prominent people. This is easy; just avoid names in the news.
Check phone books and directories (for example, law, medical, church) too, to ensure that you don’t inadvertently give your character a name belonging to a real-life person – especially one in a similar profession or living in the same town.
Avoid Defamation of Character Suits #7: Use Unusual Names
It’s less likely for us to meet a real-life miser named Ebenezer Scrooge than one named John Smith. An unusual name minimizes the risk of inadvertent defamation of character: think of names like Fezziwig, Uriah Heep and Wilkins Micawber (from Charles Dickens’ Christmas Carol and David Copperfield) and Captain Ahab (from Herman Melville’s Moby Dick).
You can also invent your own names: give free rein to your imagination, and you’ll be surprised at the names you can dream up. You will, of course, still need to check to ensure that these names are not listed in any directory.
Avoid Defamation of Character Suits #8: Create Composite Characters
The people in your story, while being true-to-life, should bear no resemblance to any living persons. The best way to achieve this is to create composite characters that are a mix of at least 4 or 5 different people you know. This also allows you to create rich, interesting personalities.
Avoid Defamation of Character Suits #9: Include a Disclaimer Clause
A disclaimer clause may help to allay suspicions in readers’ minds that you’re alluding to them; for example: All characters in this book are entirely imaginary and any resemblance to persons living or dead or actual events is purely coincidental.
Bear in mind, though, that disclaimers carry little weight if enough similarities exist between a living person and a character in your story. The best safeguard is still to avoid patterning your characters solely or mainly after known persons.
Avoid Defamation of Character Suits #10: Get People’s Consent
This applies especially when you’re writing a biography or a story based on a real-life person or incident. Get written consent from all living persons mentioned in your story: the central figure, of course (as in a biography); key people surrounding him/her; and the people after whom you’ve modeled your characters (as in a fictionalized account of an actual incident). The consent should include the person’s promise not to sue you for defamation or breach of confidence.
Once you’ve completed your story, show it to all the people involved before sending your manuscript to a publisher. Inform them, too, about any editorial change made to your story, especially where it concerns the characters modeled or named after them.
Avoid Defamation of Character Suits #11: When It’s the Truth
The general rule is that a person cannot be defamed when the truth is told about him/her: for example, if you were to write, Jack bashed up his mother while he was in a drunken rage – where Jack has been convicted in court of doing just that.
It cannot be emphasized too strongly here that your entire statement must be true, and that you must be able to prove the whole truth. For example, if you write, Ann told us that her brother Jack had bashed up their mother while he was in a drunken rage, you must be able to prove, not only that Ann did make such a statement, but also that Jack did indeed bash his mother up and did so while he was in a drunken rage.
What this means is that you must always check your sources of information: make sure that Ann has given you a true and accurate account, and not a fabricated or embellished story.
You must also be prepared to prove the truth of what you write. In a defamation of character suit, the burden is on the writer to prove the truth of his/her statements, not on Jack to prove he’d never bashed his mother up.
Bear in mind, too, that in some circumstances a truthful but malicious statement can still be regarded as defamation of character.
One way to get around these problems is to go to the source – Jack himself. Let him tell his own story and get his written consent to have it published.
Avoid Defamation of Character Suits #12: When It’s Fair Comment
Comments, in contrast to statements of fact, are expressions of opinion that a reader can choose to agree or disagree with; for example, if you were to write, Don’t vote for Simple Simon; I think he’ll make a lousy president. This is safer than saying, Simple Simon is a clueless, incompetent idiot who’s unfit to be president.
Honest comments are not defamatory if they refer to matters of public interest. However, the comment must be fair: that is, it must be an opinion that a fair-minded person could genuinely hold, and it must not be actuated by malice (meaning spite or an evil motive).
The comment must be based on facts; unfounded allegations are no defense to a defamation of character claim. Also, these facts must be existent or apparent at the time the comment is made; they must not be facts that come to light only afterwards.
Avoid Defamation of Character Suits #13: When It’s a General Statement
It’s safer to make a general statement about a big class or group of people. For example, it’s not defamation of character to say, All lawyers are crooks (although readers may then question the veracity of your statement). No individual lawyer can claim he/she’s been defamed because the class is too wide.
However, if the reference is to a limited group, an individual member of that group may sue; for example, All the lawyers in De Vious, Krafty, Lyers & Partners are crooks.
Avoid Defamation of Character Suits #14: When It’s a Privileged Statement
Statements made on certain occasions are privileged: that is, they are granted immunity from legal action even though they might be defamatory in nature.
Privilege may be absolute: that is, granted even when the statement is made with malice. Or it may be qualified: that is, the statement is privileged only if made without malice. (Malice here means spite or an evil intent.)
For the story writer’s purpose, the most relevant instances when privilege may be invoked are in narratives of proceedings in actual court cases: for example, in writing a true story or one based on a real-life incident, where the court case forms part of the story. The case must have been one held in open court and not behind closed doors, and the account must be accurate and fair: that is, both sides must be presented, although the actual words need not be reported.
While every attempt has been made to ensure that the information provided on this page is accurate, CreativeJuicesBooks is not responsible for any errors or omissions, or for the results obtained from the use of this information. The information on this page should not be used as a substitute for consultation with a qualified legal adviser.
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