L Is for Libel

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).

8 Responses to L Is for Libel

  1. Andrew Budek-Schmeisser May 9, 2022 at 5:11 am #

    Don’t want to write no libel,
    even if it’s true,
    ’cause I follow the Bible,
    and what would Jesus do?
    Well, He did condemn the Pharisees,
    and called them hypocrites,
    and I think that did not please
    those whitewashed tombs to bits.
    I was gonna say I’d rather
    go along to get along,
    but it may be heart of matter
    that to best live the Jesus song
    I’ll have to live by His own script
    with hard sharp words and homemade whip.

  2. Sheri Dean Parmelee, Ph.D. May 9, 2022 at 5:24 am #

    Steve, your posting was incredibly helpful. Thanks for the great information.

  3. SarahHamaker May 9, 2022 at 7:22 am #

    We’ve seen this played out literally in our backyard with the trial of Johnny Depp versus Amber Heard in Fairfax County Courthouse, with Depp suing his ex-wife for libel for an opinion piece published in the Washington Post (the reason it’s in Fairfax County Courthouse is because of the online servers for the Post website are housed in Fairfax County, Va.). We have to drive by the backside of the courthouse to pick up our foster kid from daycare around the time the trial ended each day and it’s been amusing to see the crowds lining the sidewalks for a glimpse of Depp or Heard as they leave after testifying.

    Kind of brings home that words matter and we should be careful what we say, how we say it and where we print it.

  4. Kristen Joy Wilks May 9, 2022 at 8:17 am #

    It is so good to know the particulars of libel. Thank you, Steve! A confusing topic, especially for fiction authors.

  5. Sharon K Connell May 9, 2022 at 9:19 am #

    Thank you for always supplying us with good advice, Steve.

  6. Wendy May 9, 2022 at 10:16 am #

    Writing truth is a thorny issue, with layers of risk, especially for memoirists. The “what ifs” can be paralyzing. I have thousands of verifiable documents: emails, text messages, photos, court records, trial transcripts, newspaper articles, and other time-stamped records, to verify the facts and timing of events in my memoir. But just because we may have the liberty to disclose a specific truth doesn’t mean we always should.

    Besides defamation and libel issues, there are also “right to privacy” concerns. I’ve chosen to handle the personal side of my story by allowing friends and family to review chapters, and eventually the manuscript. Some have already given me written permission to quote them as I wish. But I don’t want people I love to feel I have violated their trust, so they get to read everything that involves them, and if a concern comes up, we’ll work to resolve it.

    On the legal side, I think vetting manuscripts is wise and necessary for true stories.

  7. Megan Schaulis May 9, 2022 at 10:58 am #

    Hi Steve,

    Is it true you can’t libel the dead, or is that just slander? The idea being that a dead person can’t be negatively affected by the printed claims.

  8. Wendy May 9, 2022 at 2:39 pm #

    Steve,

    Thank you for the informative article. Not only are the content and links helpful, they also make for interesting reading. I’ve ordered the book and saved the Supreme Court decision to my files.

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