A Study in Scarlett (Or: Can I Be Sued For Writing That?) Part 1 of 2

You’ve heard the horror stories. Scarlett Johansson sues acclaimed French author Grégoire Delacourt for invoking her name in describing a fictional character. A jury awards Jesse Ventura $1.8 million against the estate of American Sniper author Chris Kyle over Kyle’s account of an alleged barroom brawl. Novelist Haywood Smith suffers a $100,000 jury verdict for her pseudonymous description of a friend in her bestselling The Red Hat Club. Augusten Burroughs settles with the family depicted in his bestselling Running With Scissors and agrees to rewrite the book’s Acknowledgments and Author’s Note.

As these and other cases illustrate, there are risks inherent in writing about real people. And since most publishing contracts require the author to indemnify the publisher in the event suits like these are filed, those risks fall squarely on the writer’s shoulders. Fortunately, lawsuits over literary depictions are rare, and adverse outcomes rarer still. Authors should nonetheless familiarize themselves with three legal pitfalls that, if ignored, could expose them to substantial attorneys’ fees and costs and, in some cases, to liability for monetary damages.

Today we’ll discuss defamation, the first and most common, and therefore the most dangerous, of these pitfalls:

Defamation refers to false statements of fact that result in reputational injury to another. Spoken defamation is called “slander,” while written defamation – the kind we’re concerned about – is called “libel.” While the laws governing libel vary from state to state, all have certain elements in common. In order to win a judgment for libel, an aggrieved plaintiff – that’s the person bringing suit – must usually prove that a statement of fact (a) was published, (b) was false, (c) was not privileged, and (d) caused injury to the plaintiff’s reputation.

Note that libel laws pertain only to statements of fact, and not to opinions. Thus, the statement “I think Jones is a jerk” should not be actionable, whereas the statement “Jones is a child pornographer” would likely be actionable, depending on Jones’s ability to prove the other elements of a libel claim. Note also that simply couching a statement as opinion – i.e., “I think Jones is a child pornographer” – will not necessarily insulate its author from liability where, as in this example, the statement implies the existence of supporting facts.

“Publication” in the context of libel does not mean that the false statement was actually printed and sold; it simply means that the statement was communicated to a third person who understood it. Thus, a libelous falsehood that appears in the first draft of a manuscript that the author shares only with her agent, or with a few beta readers, has been “published” for purposes of the libel laws.

Because “falsity” is an essential element of defamation, it follows – and this cannot be overemphasized – that truth is an absolute defense to a claim of libel. But if suit is filed, who has the burden of proving the statement’s truth or falsity? Ordinarily it is the plaintiff in a civil action who must prove all elements of her claim. In libel law, however, a “media defendant” – which includes an author, journalist, or publisher – bears the burden of proving the statement’s truth unless the plaintiff is herself a public figure or official, in which case the burden remains with the plaintiff to prove falsity.

“Privilege” will often, on public policy grounds, insulate an otherwise libelous statement from liability. The First Amendment, for example, protects authors and journalists who fairly comment on matters of public interest, or who accurately republish official statements or proceedings. The U.S. Supreme Court has held that the false reporting of facts about a public figure or official by a media defendant enjoys First Amendment protection unless the defendant acted with “actual malice,” meaning with knowledge of the statement’s falsity or reckless disregard for its truth.

“Injury” to one’s reputation requires more than just hurt feelings, and a libel plaintiff must ordinarily prove actual monetary loss. Where, however, the libelous statement accuses the plaintiff of a crime, or of sexual misconduct, or of conduct (such as dishonesty) that’s incompatible with her trade, business, or office, then monetary damage will sometimes be presumed.

A final, important attribute of defamation law is that you cannot defame a dead person. This means that neither a deceased person’s estate nor her heirs or descendants can sue an author for libel unless the false statement in question also independently defames the suing plaintiff.

That’s a brief overview of the law of defamation. In part two, we’ll discuss the related concepts of invasion of privacy and the right of publicity, as well as some defensive strategies that writers may wish to consider.

ORIGINALLY PUBLISHED ON RMFW.ORG (ROCKY MOUNTAIN FICTION WRITERS) ON MARCH 29, 2016