The Threat Of Libel Action?


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Thread: The Threat Of Libel Action?

  1. #1
    Offline: Depressed Trollheart's Avatar
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    The Threat Of Libel Action?

    How careful is it necessary to be? In fiction, I mean, of course. My stories reference Trump in a mostly past tense way - after the Trump administration ordered the nuking of Syria, Trump supporters thronged the streets, only in Trump's America etc - and I know you can't predict how a world-crushing bully like him will react, but in my story "A Harmless Old Man" I've been less than kind to Jay-Z, Dr. Dre and Kanye West, and have also used Conan O'Brien, Letterman and Anderson Cooper, as well as Federal Express as an entity. I did these to make the story seem more real, more grounded and more relatable to the reader. I could just have made up names, but I didn't think that would have worked as well.

    Am I, should I manage to get these works published, in danger of being sued for libel, or is the fact that it's only fiction, clearly not meant to portray or be taken as reality, enough to keep the lawyers off my case? What are the actual rules? I know you get this disclaimer about characters not intended to resemble anyone living or dead, but what if they do resemble, in fact are, people who are still alive?
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  2. #2
    Libel laws differ by nation, so depends where you are.

    In the US itís a really high bar for libel due to the first amendment and subsequent SCOTUS rulings. You have to be essentially peddling an outright lie as outright fact and in a way that a reasonable person would believe, which basically means you can write anything in a fictional context (less so in a newspaper). Hence you have Alex Jones et al claiming pedophile rings in Washington with relative immunity. The plaintiff would normally have to prove malice and that the claim being disputed is definitely a lie, and itís not always easy to do that.

    Canada and Europe...I think itís a little more stringent but as I never got legal training in Europe I wonít speak to that. I am not aware of any libel cases in any European countries involving work that was obviously fictional, so itís probably fine. Thereís also the reality that you are unlikely to write anything popular enough to piss off the people you mention and even if you do thatís probably a plus for publicity anyway, so I wouldnít worry myself.
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  3. #3
    Offline: Depressed Trollheart's Avatar
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    Thanks Lucky. I live in Ireland so I guess the European laws would apply to me. I kind of assumed that as long as I wasn't trying to pass off the accusations as genuine, asking them to be believed, that it would be okay. I doubted anyone would go after me for suggesting X did Y, even if by some miracle I did end up with a bestseller.

    And, I guess if that did happen, I'd have the money to fight it anyway. Plus as you say it would only end up as publicity for the book. Might work in my favour. Now excuse me, there's a hip-hop producer at the door who wants to - not sure what it means, these Americans and their slang - put a cap in my ass?
    Come away, human child to the waters and the wild
    With a faery hand in hand.
    For the world's more full of weeping than you can understand. - WB Yeats "The Stolen Child"

    I drink to forget, but I never forget to drink.

    "If the real Jesus Christ were to stand up today
    He'd be gunned down cold by the CIA" - The The, "Armageddon Days Are Here (Again)" - Mind Bomb, 1989


    The most destructive force on the planet is not nukes or global warming...it is the human ego. - Ralph Rotten

  4. #4
    If in doubt, either leave it out or find it out. And you are always best seeking legal advice from a lawyer when it comes to legal matters in writing, especially as it differs from country to country, state to state. Here's something from an IP Lawyer who's also an author.

    I've been pretty strict on it as an editor. E.g., one story mentions a paedophile is on the staff of a named school, a named school that not only exists but is found by Google Maps to exist in the same town the novel is set...? that's open to a lot of defamation trouble off the real school, rightly so. So a fictional school would be advisable there to avoid the real v fictional conflict.

    It's the defamation that I worry about, and it's why I'm cautious when it comes to using real people in a negative light in fiction.
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  5. #5
    Beta Reader Princesisto's Avatar
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    The reality is that your publisher is going to watch this issue very closely and they are so conservative on this issue that they are cowardly. They just won't publish anything that could possibly be put as a defamation claim by a creative lawyer but they are protecting you too.

    The worst danger for you is, if they see anything that might possibly be put as a defamation claim by a creative lawyer, they will probably just reject your book.

    One of my Beta readers always writes "this is a work of fiction: any similarity to any real person is purely coincidental". Make that true and you are rather safe. In my manuscript I even change Paramount Studios to Pinnacle Studios and McDonald's Happy Meal to McKenzie's Breakfast of Joy. That is what you should do to avoid any trouble.

    After all, you are writing fiction. What are real people doing in there?

  6. #6
    I think it depends. In the US, if you are using a famous figure as a parody, you'll probably be okay. There was a famous (infamous) case in the US when Jerry Falwell sued Larry Flynt for a rather distasteful parody Flynt published in his Hustler magazine. The Supreme Court ruled unanimously in this case that the first and fourteenth amendment protected use of public figures in the name of parody as long as the parody wasn't factual in nature. In other words, if the article in question is obviously a parody and not a document of actual fact, Falwell had no basis to sue. Ironically the two of them would become friends which proves that life can indeed make some strange bedfellows
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  7. #7
    Quote Originally Posted by Princesisto View Post
    Make that true and you are rather safe. In my manuscript I even change Paramount Studios to Pinnacle Studios and McDonald's Happy Meal to McKenzie's Breakfast of Joy. That is what you should do to avoid any trouble.
    Just to be clear here, you can use product placement: Rolls-Royce, Spider-Man, Happy Meal etc, so long as they are spelled correctly and it's not saying the likes of a Happy Meal killed Mr Simons down at no 5. But if it's a guy drinks a Jack D, then tucks into a Big Mac. Then that's fine.
    "You don't wanna ride the bus like this,"

    Mike Posner.



  8. #8
    Offline: Depressed Trollheart's Avatar
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    Quote Originally Posted by Princesisto View Post
    The reality is that your publisher is going to watch this issue very closely and they are so conservative on this issue that they are cowardly. They just won't publish anything that could possibly be put as a defamation claim by a creative lawyer but they are protecting you too.

    The worst danger for you is, if they see anything that might possibly be put as a defamation claim by a creative lawyer, they will probably just reject your book.

    One of my Beta readers always writes "this is a work of fiction: any similarity to any real person is purely coincidental". Make that true and you are rather safe. In my manuscript I even change Paramount Studios to Pinnacle Studios and McDonald's Happy Meal to McKenzie's Breakfast of Joy. That is what you should do to avoid any trouble.

    After all, you are writing fiction. What are real people doing in there?
    This is all fine as far as it goes, but really, if you write Pinnacle Studios people are going to know you mean Paramount, the same as any other badly-disguised similarity. Driving a Sobaro? Working at Microhard (ooer!)? It's all pretty obvious and if it's that obvious why not use the real names? As long as there's no intent to convey that this is reality, I can't see how it hurts. But you may all be right. I guess the chances of my being published are about as slim as it never raining in Ireland again, so it's probably a moot point.
    Come away, human child to the waters and the wild
    With a faery hand in hand.
    For the world's more full of weeping than you can understand. - WB Yeats "The Stolen Child"

    I drink to forget, but I never forget to drink.

    "If the real Jesus Christ were to stand up today
    He'd be gunned down cold by the CIA" - The The, "Armageddon Days Are Here (Again)" - Mind Bomb, 1989


    The most destructive force on the planet is not nukes or global warming...it is the human ego. - Ralph Rotten

  9. #9
    Beta Reader Princesisto's Avatar
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    There is a bit of nudge-nudge, wink-wink going on, it's true.

    Ireland is under English common law on this point and the standard will be "Would a reasonable person think that Pinnacle means Paramount?" The judge will decide. At that point you better have finished saying your Rosary because only God and the judge know what the decision will be. But if you think that the judge made an unreasonable decision, you can appeal that to the Court of Appeal and round and round we go again.

    Thus, you see why the publishers simply don't want to be within hearing of the matter. If there is any doubt, they will simply throw your work to the slush pile and never discuss the matter. If it is at all arguable, they might still publish you but tell you to get rid of the problem.

    I think Pinnacle and Paramount are different enough. But if the publisher tells me to change it to Montefiore Studios, I will obey. I hope I am in that situation someday.

  10. #10
    I would worry less about libel - a decent number of people have to actually read your book for that to be a problem - and more about the morality of what you are doing.

    It's a common misunderstanding that the law and morality are always two completely separate things. In some cases they obviously are, there's lots of bad things you can do that are legal, but always remember the people who judge the law are human beings and intent to cause harm is a big part of tort law (laws relating to infliction of damages).

    In Aquilo's example, of the school with the fictional pedophile being a real school, that's a non-starter for me. Forget libel, potentially hurting an innocent institution, especially one as well-regarded in terms of its human resources as a school (if you were writing about a pedophile set in real-life prison that might be different...) is a Dick Move and the author should, on some level, be aware of it if they have a brain in their head. Now, if the school in question is one with a rich history of pedophilia...that's different. In that case you're fictionalizing the story, but telling the truth about the primary issue.

    But in the case of an innocent party, all you have to do is put yourself in the position of the school to imagine just how potentially unpleasant that could be if the story ever became famous. So, legal or not, it's a shitty thing to do - especially given it's such an easy thing to avoid. Authors invent fictional places all the time.

    So, point being, let the law be your ultimate decider (and find a lawyer for those questions) but first, do try to weigh up your place on the moral compass - as objectively as possible. Consider the benefits to using real-world places, institutions and people (realism, etc) against the potential for harm you could do and the likelihood of that harm being inflicted. Is Donald Trump available for an increased level of defamation and contempt than, say, some random school employee(s)? Is Donald Trump likely to notice or care? That is up to you.

    If you start to feel like an asshole then don't do it.
    "If you don't like my peaches, don't shake my tree."

    "Perhaps I write for no one. Perhaps for the same person children are writing for when they scrawl their names in the snow."

    ďRemember this: Dumbo didnít need the feather; the magic was in him. Ē

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