Libel and defamation law - the essential guide for writers
Oct 26, 2020 11:00:10 GMT -6
Post by farida on Oct 26, 2020 11:00:10 GMT -6
Is your story set in the real world?
Does your story include real people alive today?
If so, you should think carefully about whether your copy could give rise to libel and defamation issues. It is very important for authors – even if they only publish on their personal website or blog – to be aware of libel law and understand how to avoid it.
I'm a journalist in my day job, so I deal with potentially libellous writing almost every day. In this little essay I will explain what libel law is, and then talk a bit about how it applies to fiction and how you can avoid it without compromising your writing.
Are you sitting comfortably? Let’s begin!
PART 1 – Libel law
What is libel and defamation?
Libel means saying something derogatory or offensive about somebody that is untrue, or accusing them of criminal/immoral activities that are unproven. In short, libel means making up something negative about a real person.
It does not matter if your libel happens in a fictional story – if the person is identifiable and you are saying bad things about them that aren’t true that person will have a case for libel.
But if what you are saying is factually true and, in case of crime, has been proven in court, you are not at risk of a libel suit.
Who can be a target for libel?
Only people alive at the time of publication can be libeled. In some countries, including the United States, corporations can be treated as people, and can sue for libel if you represent them in bad light.
One easy way to avoid libel is to change enough details about a real character or organisation to make them unrecognisable. However, this also dilutes the “real-world” feeling of your writing, if this is what you aspire to.
Where does libel law apply?
Libel lawsuits can be brought in any country where the libelous material is accessible. If you have published on the internet, the person at the centre of the libel suit can sue you from anywhere with an internet connection. Just because you live in one country does not mean you cannot be sued for libel in another.
What’s the damage?
Libel lawsuits result in hefty fines. The plaintiff will sue for the damage caused by the loss of reputation he or she suffered as a result of the libel. This can be real, financial damage due to loss of business or employment, and damages resulting from psychological stress. In Europe most libel suits result in fines of around €20,000-€50,000 but in the United States they can run into the millions of dollars, especially when corporations are involved.
Libel suits do not usually result in incarceration, unless the libel was repeated and so vicious it suggests criminal intent.
But what about free speech?
Libel law is not a restriction of free speech – its purpose is to protect people from slander and malicious lies. You have every right to voice your opinion freely. But bear in mind that other people have the right to not be accused of crimes they didn’t commit or have their reputations injured through baseless insults. I will explain more in part 2.
PART 2 – Libel in fiction writing
Writing is creative work and fiction writing is essentially “made up”. But when you base your story in the real world you want your reader to get a sense of realism – so you might have to make up things about real people.
Libel problems arise if authors depict real, identifiable people in criminal or compromising situations. Libel is also a problem if you describe real people in offensive terms, using language that makes it sounds as if your description was factual.
This is obviously difficult to avoid when you are writing, say, a spy thriller set in modern-day Russia and you have a character who despises Putin. How can you make the character’s hatred seem real without finding yourself in a court case with the Kreml?
So, let’s take a look at what is allowed:
Fair criticism
Writing is not libelous if it is fair criticism. That means you criticise a real person’s actions and behaviour, using constructive terms. You are allowed to say that Tony Blair’s actions in the run-up to the Iraq war were misguided and ill-informed, giving some examples. You are not allowed to state as fact that a named public figure is an idiot, a bastard, a pig, ect. Unless you are…
Reflecting your characters emotions
If the character in your piece is expressing his or her justified anger or disappointment concerning a realistic situation, you’re usually fine. Please note, the situation must not necessarily be real, but realistic enough to match the person or organisation you are writing about.
Warning: What constitutes ‘realistic’ is a legal grey area, please err on the side of caution.
Example: If you are writing about a fictional indigenous man whose forest has been cut down by palm oil manufacturer Unilever, your character is allowed to say: “Unilever are a bunch of bastards.” That’s because it’s a fact that Unilever runs palm oil plantations grown on previously pristine forest land, and your character’s motivation for his anger are clear.
Free speech and voicing your opinion
Those of us fortunate enough to live in modern democracies have a fair amount of freedom of speech. You are entitled to have an opinion and voice it in public! If you make it clear in your writing that you hold a specific opinion regarding a real person, then you are safe from libel cases.
Warning: This does not apply to accusing people of crimes and misdemeanour.
Example: It’s ok to say: “I think Angela Merkel is an idiot.”
It’s not ok to say: “[Politician's name] is an axe murderer.”
Satire, spoofs and black humour
You are allowed to use nasty language in satire or humorous spoof stories, and even pretend that people were involved in crimes — as long as it’s clear that your writing has no pretension to reality.
Libel law for satire also makes a distinction between people in the public eye and people who aren’t. You’re much more likely to get away with a satirical piece on a well-known politician or a film star than one about your neighbour or your high-school teacher.
Warning: The lines of what legally constitutes satire are grey and you should try and err on the side of caution.
Example: During a German satirical show, comedian Jan Boehmermann sang a song about Turkish president Tayyip Erdogan, accusing him of sexual crimes involving children and animals, as well as atrocities against Christians. Erdogan sued for libel and a court ruled in his favour. The court found that the song, even though it was part of a satirical show, contained no evidence of satire or or spoof material, only highly offensive and defamatory accusations.
PART 3 – Avoiding libel in your writing
There are a few simple steps you can take to avoid a libel suit arising from your fiction:
Write only what is factually true about a real character
Do not accuse real people in your fiction of crimes they haven’t committed and do not put them into compromising situations that are entirely out of character (for example, making them part of a criminal gang if they had no gang connections in real life, ever). Do your research well.
Do not use objective speech for potentially libelous information. Say “I think/The character thinks”, not “It’s a fact that”
Clearly mark the boundaries between satire and defamation. When you are satirising a real person or writing a spoof story, make sure it is clear and well-done, not just a rant of malicious accusations. Sometimes a disclaimer can help. Sometimes, the more over-the-top your spoof story goes, the safer you are.
Avoid ranting and personal insults. Fair criticism – in fiction and in real life – has to be based on facts. Using swearwords and insults to describe a real person without factual backup can be construed as libel. Do not use fiction to settle scores or air your grievances in an offensive way.
Beware of context. Certain swearwords and insults take on an added level of meaning if they are directed against people of colour, people with different sexual preferences, people with disabilities or other groups that are either minorities or at a disadvantage. I don’t want to give examples here, as they would be terribly offensive, but keep context in mind when using insults against real people — even if it’s satire.
Do not reprint or repeat libel published elsewhere. Libel is libel, even if you've only repeated it based on another source. You are legally responsible for everything you've published.
I hope this has given you a good understanding of libel law and its implications for your writing. If you are wondering why you’re still seeing libelous information floating about the writing world freely, read the next post.
Does your story include real people alive today?
If so, you should think carefully about whether your copy could give rise to libel and defamation issues. It is very important for authors – even if they only publish on their personal website or blog – to be aware of libel law and understand how to avoid it.
I'm a journalist in my day job, so I deal with potentially libellous writing almost every day. In this little essay I will explain what libel law is, and then talk a bit about how it applies to fiction and how you can avoid it without compromising your writing.
Are you sitting comfortably? Let’s begin!
PART 1 – Libel law
What is libel and defamation?
Libel means saying something derogatory or offensive about somebody that is untrue, or accusing them of criminal/immoral activities that are unproven. In short, libel means making up something negative about a real person.
It does not matter if your libel happens in a fictional story – if the person is identifiable and you are saying bad things about them that aren’t true that person will have a case for libel.
But if what you are saying is factually true and, in case of crime, has been proven in court, you are not at risk of a libel suit.
Who can be a target for libel?
Only people alive at the time of publication can be libeled. In some countries, including the United States, corporations can be treated as people, and can sue for libel if you represent them in bad light.
One easy way to avoid libel is to change enough details about a real character or organisation to make them unrecognisable. However, this also dilutes the “real-world” feeling of your writing, if this is what you aspire to.
Where does libel law apply?
Libel lawsuits can be brought in any country where the libelous material is accessible. If you have published on the internet, the person at the centre of the libel suit can sue you from anywhere with an internet connection. Just because you live in one country does not mean you cannot be sued for libel in another.
What’s the damage?
Libel lawsuits result in hefty fines. The plaintiff will sue for the damage caused by the loss of reputation he or she suffered as a result of the libel. This can be real, financial damage due to loss of business or employment, and damages resulting from psychological stress. In Europe most libel suits result in fines of around €20,000-€50,000 but in the United States they can run into the millions of dollars, especially when corporations are involved.
Libel suits do not usually result in incarceration, unless the libel was repeated and so vicious it suggests criminal intent.
But what about free speech?
Libel law is not a restriction of free speech – its purpose is to protect people from slander and malicious lies. You have every right to voice your opinion freely. But bear in mind that other people have the right to not be accused of crimes they didn’t commit or have their reputations injured through baseless insults. I will explain more in part 2.
PART 2 – Libel in fiction writing
Writing is creative work and fiction writing is essentially “made up”. But when you base your story in the real world you want your reader to get a sense of realism – so you might have to make up things about real people.
Libel problems arise if authors depict real, identifiable people in criminal or compromising situations. Libel is also a problem if you describe real people in offensive terms, using language that makes it sounds as if your description was factual.
This is obviously difficult to avoid when you are writing, say, a spy thriller set in modern-day Russia and you have a character who despises Putin. How can you make the character’s hatred seem real without finding yourself in a court case with the Kreml?
So, let’s take a look at what is allowed:
Fair criticism
Writing is not libelous if it is fair criticism. That means you criticise a real person’s actions and behaviour, using constructive terms. You are allowed to say that Tony Blair’s actions in the run-up to the Iraq war were misguided and ill-informed, giving some examples. You are not allowed to state as fact that a named public figure is an idiot, a bastard, a pig, ect. Unless you are…
Reflecting your characters emotions
If the character in your piece is expressing his or her justified anger or disappointment concerning a realistic situation, you’re usually fine. Please note, the situation must not necessarily be real, but realistic enough to match the person or organisation you are writing about.
Warning: What constitutes ‘realistic’ is a legal grey area, please err on the side of caution.
Example: If you are writing about a fictional indigenous man whose forest has been cut down by palm oil manufacturer Unilever, your character is allowed to say: “Unilever are a bunch of bastards.” That’s because it’s a fact that Unilever runs palm oil plantations grown on previously pristine forest land, and your character’s motivation for his anger are clear.
Free speech and voicing your opinion
Those of us fortunate enough to live in modern democracies have a fair amount of freedom of speech. You are entitled to have an opinion and voice it in public! If you make it clear in your writing that you hold a specific opinion regarding a real person, then you are safe from libel cases.
Warning: This does not apply to accusing people of crimes and misdemeanour.
Example: It’s ok to say: “I think Angela Merkel is an idiot.”
It’s not ok to say: “[Politician's name] is an axe murderer.”
Satire, spoofs and black humour
You are allowed to use nasty language in satire or humorous spoof stories, and even pretend that people were involved in crimes — as long as it’s clear that your writing has no pretension to reality.
Libel law for satire also makes a distinction between people in the public eye and people who aren’t. You’re much more likely to get away with a satirical piece on a well-known politician or a film star than one about your neighbour or your high-school teacher.
Warning: The lines of what legally constitutes satire are grey and you should try and err on the side of caution.
Example: During a German satirical show, comedian Jan Boehmermann sang a song about Turkish president Tayyip Erdogan, accusing him of sexual crimes involving children and animals, as well as atrocities against Christians. Erdogan sued for libel and a court ruled in his favour. The court found that the song, even though it was part of a satirical show, contained no evidence of satire or or spoof material, only highly offensive and defamatory accusations.
PART 3 – Avoiding libel in your writing
There are a few simple steps you can take to avoid a libel suit arising from your fiction:
Write only what is factually true about a real character
Do not accuse real people in your fiction of crimes they haven’t committed and do not put them into compromising situations that are entirely out of character (for example, making them part of a criminal gang if they had no gang connections in real life, ever). Do your research well.
Do not use objective speech for potentially libelous information. Say “I think/The character thinks”, not “It’s a fact that”
Clearly mark the boundaries between satire and defamation. When you are satirising a real person or writing a spoof story, make sure it is clear and well-done, not just a rant of malicious accusations. Sometimes a disclaimer can help. Sometimes, the more over-the-top your spoof story goes, the safer you are.
Avoid ranting and personal insults. Fair criticism – in fiction and in real life – has to be based on facts. Using swearwords and insults to describe a real person without factual backup can be construed as libel. Do not use fiction to settle scores or air your grievances in an offensive way.
Beware of context. Certain swearwords and insults take on an added level of meaning if they are directed against people of colour, people with different sexual preferences, people with disabilities or other groups that are either minorities or at a disadvantage. I don’t want to give examples here, as they would be terribly offensive, but keep context in mind when using insults against real people — even if it’s satire.
Do not reprint or repeat libel published elsewhere. Libel is libel, even if you've only repeated it based on another source. You are legally responsible for everything you've published.
I hope this has given you a good understanding of libel law and its implications for your writing. If you are wondering why you’re still seeing libelous information floating about the writing world freely, read the next post.
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