To libel someone is to injure a person’s reputation via the written word (slander is for the spoken word). I recently wrote about indemnification but only touched on this topic. Let’s take a deeper look 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 has all four of the following elements: (1) published, (2) false, (3) injurious, (4) unprivileged.
The first is obvious. Posting something on Twitter or Facebook is “published.” And yet a few years ago, a federal judge ruled that a blogger has the same defamation protection as a journalist. (Read the article here.) But beware that the legal system has been in flux in relation to free speech since that time.
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. The word “false” has been bandied about quite often, especially in the media. Even satire, like a number of pieces written by the Babylon Bee, has come under attack despite being clearly satirical.
Third, the person claiming they were defamed has to prove they were hurt by it. For instance, 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. For example, 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 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.
“But what about fiction?” you ask. What if you use a real person, a real business, or a real sports team in your novel? Can you be guilty of libel? Isn’t it “fiction,” as in “not true”? This is a great question, and I recommend reading this brilliant and comprehensive answer from professor Ron Hansen in his speech on “The Ethics of Fiction” (click on the provided link). In simple terms, I’d avoid putting them in your story unless absolutely critical (like historical fiction). It would be an unnecessary distraction from the story itself. For example, in the novel The Natural by Bernard Malamud, the baseball player is on a team called the New York Knights.
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. Or get a copy of The Law (in Plain English) for Writers by Leonard DuBoff and Sara Tugman (Fifth Edition, 2018).
