How to avoid Libel and Defamation as an Author

Most authors don’t need to worry about libel. It’s rare for a novelist to be sued for libel. But there are occasions when libel can cause problems for authors. This post examines how to avoid libel and defamation as an author.

Orna Ross

Orna Ross, Director of ALLi

The lines quoted at the end of movies–about the story, names, characters, and incidents being fictitious and no identification with actual persons (living or deceased), places, buildings, and products being intended or inferred–applies to novels too. You don’t need to have a such clause in your book. The fact that it is fiction speaks for itself.

If you change names and other details to protect people’s reputation and privacy, it might be enough to protect you from a lawsuit. But equally, you could still be sued and there’s no guarantee of winning the lawsuit if it’s brought to court. That said, it is highly unlikely that anyone is going to sue you.

If you think you might have libelled somebody in your book, look first at how you can change the text. If you don’t want to do that, why? Examine your own motives. Are you angry? Are you using the power of the pen to get back at someone?

Be aware that emotions can cloud judgement. Get a second opinion.

People will unthinkingly tell you to “take legal advice” but such advice will run into thousands, if you’re going to a properly qualified lawyer.

We are not lawyers and what follows is general guidance.

Libel and Defamation: Some Definitions

Material is defamatory if it “damages the reputation of an individual or an organisation”.

You are permitted to publish defamatory material only if it comes within one of the recognised legal defences (see below). If it doesn’t, its publication (in any form: books, blogs, video, audio, drama, fiction etc.) is deemed to be libel and you may have to pay substantial damages.

(Slander is ‘defamation by word of mouth’, not publication).

You are also liable if you publish a defamatory or libellous statement made by someone else (on your blog, for example, or in your book) even if you quote them accurately.

Libel law rightly protects individuals and organisations from mistaken, untruthful or unwarranted attacks on their reputation.

A person is libelled if a publication:

  • Discredits them in their trade, business or profession
  • Exposes them to hatred, ridicule or contempt
  • Causes them to be shunned or avoided
  • Generally lowers them in the eyes of society

But of course there are times when a writer needs to tackle injustice, corruption and other behaviors. When doing so it helps to have an understanding of libel law and the most common defences used in defamation cases.

Be aware that some people are much more likely to sue for libel than others: politicians, police, journalists, lawyers, big business, celebrities, those whose reputation is important to their livelihood and have the resources to take action.

How to avoid Libel and Defamation as an Author: General Guidelines

Proceed mindfully and cautiously. Change names and any other details that don’t interfere with your story. Make your characters substantially different from any real world subjects.

Be aware of privacy law as well as libel. Human rights law gives all citizens the right to privacy. Harry Bingham of Jericho Writers recalls an example 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.

The test of libel used by the courts 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 comes into question.

Defamation can also land you with an expensive lawsuit. There is no legal aid for libel cases and no insurance that will protect you from making unsubstantiated claims.

Note also that in English law, the burden of proof in a libel cases lies with the author or publisher. The person you’ve allegedly libelled does not have to prove that you’re wrong in what you say. It is you who will have to prove that what you wrote was true at time of writing.

How to avoid Libel and Defamation as an Author: Ten Considerations

1. Word Choice

The first battle in a defamation case is usually over what the words mean. You need to examine your work for slights that are likely to sting or hurt. What will the average, reasonable, fair-minded reader assume on reading your material? Be accurate and precise and fair. Don’t exaggerate. Watch out for innuendo.

2. Inferred Meaning

In libel and defamation cases, you are responsible (and legally liable) not just for what you say, but what the common reader is likely to read between the lines. Watch for tone and attitude, as well as language choice.

3. Be clear

Plaintiffs will exploit ambiguity, and argue that the average, reasonable, fair-minded reader would assume the worst. Eliminate ambiguity and convey your meaning precisely.

4. Only say what you can prove

What evidence could you put before a court if someone challenged you? How convincing would that evidence be? If you’re citing documents, who else can authenticate them? Do you have sources? How credible are they? Do they have first-hand knowledge? Are they willing to give evidence?

If you’re accusing someone of a crime, you need to have particularly strong evidence. It is difficult to prove someone’s state of mind, so you are better off talking about the person’s conduct itself (what she said was false/misleading) rather than stating baldly that she lied.

5. Say also what you don’t know / cannot prove

If you are transparent about what you are not alleging, you make it hard for a plaintiff to argue that readers will assume the worst.

6. Pick the right “tier” of allegation

Courts distinguish between “tiers” of allegation, depending on how equivocally the accusation is put.

  • Allegation of guilt – Mr X is corrupt.
  • Reasonable grounds to assume guilt – Is Mr X corrupt?
  • Reasonable grounds for inquiry – Need to investigate whether Mr X is corrupt.

It’s much easier to prove a tier 3 allegation than a tier 1 allegation. Evidence pointing to guilt is sufficient to support such an allegation, rather than needing to prove it.

7. Defence of truth

The main defence to a libel action is ‘truth’, that is being able to prove that the defamatory allegation is substantially true. But be aware that no defence of libel, even truth, is failsafe. Your sense of something being “the truth, the whole truth, and nothing but the truth” can become less absolute during legal proceedings.

8. Defence of opinion

There’s a defence called honest opinion / fair comment for those who are expressing clear opinion on accurate facts. Separate them out and distinguish between the two in your language. Use words like “seems”, “appears”, “perhaps”, “maybe”, may have” when giving your opinion. If the facts are in the public domains, cite sources. Contrary to popular belief, just adding ‘allegedly’ is not enough to clear you of libel contraints.

9. Defence of Absolute or Qualified Privilege

Certain situations are subject to privilege and insulation against defamation e.g. council meetings, press conferences, public inquiries, parliaments, etc. Reporting on what is said there in a fair and accurate manner and in good faith protects against libel and defamation suits

10. Act ethically

This is your best protection. If you act ethically, you’re less likely to defame or libel. If you inadvertently do, you are less likely to be sued. And if you are sued, your defence will be more robust and a judge or jury is likely to be more sympathetic.

Do obvious checks.

Don’t rely on biased sources. Don’t say more than you know. Put your criticisms to those you are criticising before you publish. Give them a right to reply. Be measured.

In a worst case scenario of having to go to court, acting ethically may allow you to argue for a defence of qualified privilege. Although this defence is in flux, it may be available to publications on matters of public interest where the publisher has acted responsibly. Position yourself to take advantage of this possibility.

How to avoid Libel and Defamation as an Author: Retraction

There other main defence is retraction of the allegedly defamatory statement. Issue a correction and apology if you get something wrong.

In summary, always check your sources, act ethically, avoid using anything you’re not 100% certain is true, where possible use “fair comment” wording and if in doubt, leave it out.

Leave a Reply

Your email address will not be published. Required fields are marked *