by Steve Laube
To libel someone is to injure a person’s reputation via the written word (slander is for the spoken word). I wrote recently about Indemnification but only touched on this topic. Let’s try to unpack it a little further 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 is all four of the following: 1) published 2) false 3) injurious 4) unprivileged.
The first is obvious. Posting something on Twitter or Facebook is “published.” And yet two weeks ago a Federal judge ruled that a blogger has the same defamation protection as a journalist. (Read the article here.)
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.
Third, the person claiming they were defamed has to prove they were hurt by it. 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. Last week 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 they 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…
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.
Publishing A-Z series:
A is for Agent
A is for Advance
B is for Buy Back
C is for non-Compete
D is for Dispute Resolution
E is for Editor
F is for Foreign Rights
G is for Great
H is for Hybrid
I is for Indemnification
J is for Just-in-Time