Sticks, Stones and Lawyers

by: Jean Fritz
“But how can you say, 'It was only talk, so no harm was done?' Were this true, then your prayers, and your words of kindness, would be a waste of breath.” - Nachman of Bratslav
Defamation ... slander ... libel. It doesn’t take a rabbinic scholar to tell you that words have the power to wound, to destroy lives, careers, and legacies. Any writer dealing in non-fiction narrative, biography or autobiography needs to be aware of his or her legal responsibility in disseminating information about someone, living or dead, celebrity or common person. Even if the perceptions recorded are accurate, writers still need to protect their interests in the event of a libel suit.
The legal definition of libel is: “the publication and distribution of false information regarding an individual which is defamatory in nature, and has been published and distributed with malicious intent.” Subjects covered under the libel laws include allegations of criminal behavior, sexual or moral inappropriateness, or any allusions to a person’s competency (or lack thereof) in their profession.
TRUTH AS DEFENSE:
The key words contained in this definition are “false information.” If a writer can establish that the information they have written and published is true, then they have made their case.
But “truth” is not necessarily an absolute, and there are steps every writer must take in order to get an audience – or a judge – to see things their way.
SOURCES:
The first is to have impeccable sources of information. Yes, everyone is flawed, but some flaws create larger credibility gaps than others. For example, Juanita Broderick’s story of being raped by Bill Clinton was undamaged by her “flaw” of being involved at the time with another man while still married. The weight of her capacity as a successful businesswoman who was well-grounded gave her an air of veracity. On the other hand, the publishing house which released – and soon retracted – the book, Fortunate Son, had depended heavily on the testimony of a drug user / dealer to support claims of President Bush’s cocaine use. Drug dealers and users are known to be less than credible, and with no corroborating evidence, the story was built on very shaky ground.
EVIDENCE:
The second step is to verify all information with some sort of corroborating evidence. Public records, receipts, time cards, or any written evidence that comes from a source with “no horse in the race,” so to speak, are good backups for information received from a source. But take a lesson from Dan Rather, and be certain that any documentation has not been corrupted. At the very least, have more than one piece of evidence to support any allegations.
CONTEXT:
Finally, be sure you are accurate in describing the context of the behavior you are alleging. Recently, a judge successfully sued a television news team for libel. The reporter’s editorial slant was that this judge was soft on crime, and had little empathy for victims. The judge did not refute the truth of the cases reviewed; however, he stated that the cases described in their news stories were aberrations, and that an overview of all the cases adjudicated in his courtroom would present a more accurate picture of his judgments and behavior. Everyone can have a bad day, and everyone makes poor decisions at some time. Playing the “gotcha” game can only damage your credibility as a writer, and could possibly cost you more than your reputation.
“CELEBRITY” DOESN’T EQUAL “TARGET”
Public figures face the reality that they have fewer rights to privacy than an ordinary person. This doesn’t exempt writers from doing their “due diligence” if a celebrity is their chosen topic. A good writer would never depend solely on the marketing fluff spun by a celebrity’s publicist, but neither should they depend solely on information from the hairdresser, housekeeper, or gardener’s cousin. Once again, good sources make a good story, and also protect the writer from legal action.
Any time your story involves real people, scan it for libel potential. The following checklist, used by one publishing house as a safeguard for its authors, is a good start:
Does the material identify a person (living or dead) or an entity?
This material does not need to actually name names – any behavior or description that makes clear to the reader the identity of the person or entity is potentially a problem.
Is any identified person dead?
These depictions need to be as accurate as they would be if the individual were alive. The person’s estate can bring suit against a writer.
Is the person identified:
A private person?
A public person or celebrity?
A political person?
Would the material negatively influence a reasonable reader's opinion of the person or entity identified? Would it reflect badly on the character of the person or entity?
Could it harm the reputation or diminish the esteem, respect, or good will in which the person or entity's relevant community holds him, her, or it?
Is defamatory information in the form of:
An explicit statement,
An insinuation,
A sarcastic statement,
A parody or cartoon,
An opinion that implies that there are defamatory facts underlying it even if not stated, or
Something else?
Is the statement or other material true? Do you have documentation that would satisfy a court of law?
Is the statement or other material a fair report of an official or public record or proceeding?.
Is the statement or other material an expression of opinion and not an assertion of fact? Has this been made obvious to the reader?
Does the statement or other material constitute a comment or opinion on a matter of public concern? For example, does it relate to public health or safety, or expenditures of public funds?
Would an opinion be construed as an actual fact?
Does the opinion merely express dislike, or does it hint at negative behaviors or characteristics?
Has the subject of the statement or image has given consent to the material? Have you made an attempt to get their point of view?
The more “yes” answers to these questions, the greater the likelihood of a libel lawsuit. As a writer, it’s your responsibility to monitor the information you release. Settling a score through your writing may give you momentary pleasure, but the cost may be tremendous.