how to Avoid a Defamation Lawsuit as an Author

We all know the freedom of speech is an important and protected right in America, but it is important to understand there are limitations. That means as an author, you must use caution when writing about others, or you might end up with a lawsuit. This article should summarize the basic principles of defamation law in the United States, but should not be taken as legal advice. For questions regarding your specific situation, we always advise contacting an attorney in your jurisdiction for legal counsel, but this information should help you become better informed about this potentially costly topic.

Over the years, lawmakers have tried to find a balance between freedom of speech and protecting individuals. It has been a constant struggle, and libel isn’t an exact science. There can be a lot of grey area. So how can an author avoid a defamation lawsuit when writing a book? How do you know what you can and cannot publish? To successfully navigate the murky waters of libel law, you must understand the definition of libel and follow some basic dos and don’ts to avoid a defamation lawsuit.

What is libel?

Libel is the publication of a false statement that hurts someone’s reputation. It is one of the two forms of defamation. Slander is the other form, which is a defaming statement that is spoken, instead of written. Defamation is the umbrella term for libel or slander.

Who can sue for libel?

Laws vary from state to state, but in most cases, any individual, business, not-for-profit, small group, or corporation can sue for defamation. Government bodies cannot sue, but individual politicians can.

What must be proven in a libel lawsuit?

For someone to win a libel lawsuit, they must prove these four things:

1. Falsity: The plaintiff must show that the claim is an untrue statement masquerading as fact.
2. Fault: For private individuals, only negligence needs to be proven. For public figures (such as politicians and celebrities) “actual malice” must also be shown, which means the defaming statement was published without regard of the truth and with the intention of hurting the individual.
3. Damage: The plaintiff must prove that harm was caused by the defaming publication, such as loss of revenue, emotional trauma, or loss of esteem in the eyes of others.
4. Publication: The libelous claim must be read by someone other than the plaintiff and defendant. You don’t have to be a bestseller to be the subject of a libel lawsuit. If your book is published, then you’re at risk.

Dos and Don’ts: How to avoid a defamation lawsuit as an author

Authors are not often sued for libel, but it can and does happen. While you can never be 100 percent sure you are not at risk, there are some basic dos and don’ts that can help you reduce the probability your book could result in a lawsuit.

Do tell the truth

In a libel case, truth is a defense. A true statement, no matter how scathing, isn’t libelous. However, there are other factors to consider.

• Don’t make claims based on assumptions or opinions. Adding “in my opinion” before a statement won’t save you in a libel case.
• Don’t embellish or exaggerate. If your book is nonfiction or memoir, then make sure it is truthful in every detail.
• Don’t overlook invasion of privacy laws. Even though a true statement might not be libelous, it could qualify as invasion of privacy, especially for a private individual.

Do consider parody

When you really want to make a bold statement, consider writing a book of parody or satire, which doesn’t require you to make truthful statements. It’s protected against libel suits, as long as the parody is so ridiculous that no one could mistake it as fact.

Do use a disclaimer

Fiction example: “This is a work of fiction. Names, characters, businesses, places, events, and incidents are either the products of the author’s imagination or used in a fictitious manner. Any resemblance to actual persons, living or dead, or actual events is purely coincidental.”

Memoir example: “This book is a memoir. It reflects the author’s present recollections of experiences over time. Some names and characteristics have been changed, some events have been compressed, and some dialogue has been recreated.”

Don’t assume a disclaimer will protect you. While it may help, the disclaimer alone isn’t a foolproof solution. Courts can rule these types of disclaimers null and void.

Do hide identities thoroughly

To protect the privacy of individuals in your book and avoid a libel lawsuit, you have to put in the extra work and get creative.

• Don’t assume changing names is enough, because it’s not. If you make a claim about your doctor and only change the name, people who know you or the doctor might still be able to identify the doctor. Change multiple aspects. Ensure that those who know you or the doctor won’t be able to reasonably identify the individual.
• Don’t use a recognizable aspect of a person. It is tempting to use certain details about a person that make them interesting, such as wearing a handlebar mustache or riding a Segway—but don’t do it. It’s easy proof that you are indeed writing about a real person. Instead, get creative and come up with some interesting quirks of your own.

Do use extreme caution for certain claims

Calling someone a crook, prostitute, or corrupt individual is easy bait for a lawsuit, especially if you don’t have concrete evidence to back it up. It’s better to simply tell your story and let the readers come to their own conclusions. This way, you can avoid labeling a person or business a term that could trigger a big reaction.
Don’t make false statements that qualify as libel per se, or libel that is so obviously harmful that the plaintiff doesn’t even have to prove damages. According to Cornell Law School, examples include the following claims about an individual:

• Committed crimes of moral turpitude (a crime that’s especially vile and against morals)
• Performed acts of unchastity
• Carries a loathsome disease
• Or any other claims that negatively affect the person’s profession or business

Do obtain written permission from individuals

Don’t publish sensitive material unless it is critical to the success of your book. Weigh the importance of including material. Is it really worth the risk? Or could you express your point in another way?

Do speak with a lawyer when publishing sensitive material.

Don’t forget to support your claims with evidence. It’s good practice to cite sources in your work, plus it can help you defend yourself in a lawsuit. If you cannot find evidence to support a claim, then perhaps it is speculation instead, in which case you should clearly state it as such.

When in doubt, speak to a lawyer who specializes in publishing or the First Amendment. It’s better to be safe than sorry.

ALC Author

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