Tricks and Traps of Using Real People in Your Writing, Part 2: What is Defamation?

by | Aug 28, 2015

By Helen Sedwick

In 1979, Penthouse Magazine carried a humor piece about a Miss Wyoming whose talent performance involved a sex act that caused a man’s entire body to levitate off the floor, all while she twirled her baton.

The real Miss Wyoming, Kimerli Pring, sued, claiming the article was defamatory and had made her life miserable. She felt raped by men’s eyes, and she lost students from her baton twirling classes. (I am not making this up.)

A local jury awarded her $26,500,000. Her lawyer boasted that publishers like Penthouse “can no longer drape themselves in the American flag and scream freedom of the press, while smearing little helpless people for profit.”

However, on appeal, the higher court reversed the ruling. It determined the article was not defamatory. Really? Wasn’t the article untrue and didn’t poor Kimerli suffer?

Let’s take a look at the elements of defamation for the answer.

Defamation

To prove defamation, whether libel for written statements or slander for spoken ones, a plaintiff (the target) must prove all of the following:

False Statement of Fact:

If a statement is true, then it is not defamatory no matter how offensive or embarrassing. (Although the writer may have violated someone’s right of privacy, a topic I will discuss in my next post.)

Opinions are not defamatory, not matter how insulting, as long as they don’t sound like statements of fact. Certain statements are considered opinions because of the context, such as Yelp and Amazon reviews. However, courts see no difference between “Joe is a pedophile” and “In my opinion, Joe is a pedophile.” The question is whether the statement can be proven objectively. The more precise a statement, the more likely it will be considered a fact. Better to say “Joe gives me the creeps” or “I would never let him babysit my children.”

Parody is not defamatory as long as the absurdity is so clear no reasonable person would consider the statements to be true. That is the key to the Pring reversal. The appeals court explained that since it was impossible for Miss Wyoming’s sexual act to cause levitation, the Penthouse article cannot be seen as a defamatory statement of facts.

Of an Identifiable Person or Organization:

A defamatory statement must contain sufficient information to lead a reasonable person (other than the target) to identify the target.

For example, Andrew Greene is suing Paramount Pictures for $25,000,000 claiming he was defamed by the character “Rugrat” Kiskoff in the movie, The Wolf of Wall Street. Greene claims he is easily identifiable because Rugrat, like Greene, wears a toupee. In fact, Greene seems particularly offended that the toupee is “accentuated and mocked in an egregiously offensive manner.”

Frankly, the producers were asking for trouble by using something as distinctive as a toupee, but a toupee, particularly a bad one, must have been too funny to resist.

Typically, the target must be a living person, but companies have sued for defamation, particularly when the damaging statement is about food. Many states have passed “Ag-Gag laws” to protect local farming interests. Oprah Winfrey was sued by a group of Texas ranchers after saying she had sworn off hamburgers because of mad cow disease. (Oprah won the case.)

That is Published:

Published does not mean widely distributed. Only one person (other than the target) must read or hear the statement. Nowadays a single tweet can be heard around the world, so proving publication is easy.

Causes Reputational Harm:

The false statement must be more than offensive, insulting, or embarrassing. Portraying someone as a jerk of a boyfriend, or an insulting mother-in-law, or an obnoxious boss is not defamation. The statement must “tend to bring the subject into public hatred, ridicule, contempt, or negatively affect its business or occupation.”

Certain false statements are considered defamatory automatically, namely allegations of crimes, loathsome disease, promiscuity, corruption, and professional incompetence.

You never know what some people consider harmful. Donald Trump sued a publisher for underestimating his wealth. In the Greene case, the plaintiff was an executive of what turned out to be a criminal enterprise. I don’t see how his professional reputation could get much worse.

Made With Actual Malice or Negligence:

If the target is a public official or a public figure, then the target must prove the statement was made with actual knowledge that it was false or with a reckless disregard for the truth. If the target is a private individual, courts generally require some fault or negligence by the defendant.

Who qualifies as a public figure is a murky area, but I suspect now that anyone can choose to put themselves in the social media spotlight, the definition of public figure will expand.

In this post, I am discussing United States law. The laws of other countries are more favorable to targets, and you could get sued in France for a blog written in California. However, the Speech Act of 2010 helps to protect U.S. writers by prohibiting U.S. courts from recognizing or enforcing foreign judgments for defamation that are inconsistent with the First Amendment.

What’s a writer to do?

Considering the hundreds of thousands of books published each year, relatively few defamation suits are actually filed. Most targets don’t sue because they do not want to call attention to a matter best forgotten. And defamation is difficult to prove.

My theory about defamation suits (in fact, any lawsuit) is your chances of getting sued are a factor of money times emotion.

  • If the target, publisher, or author has deep pockets, or the matter involves a lot of money, then the risk of a lawsuit increases.
  • If the target is deeply and personally offended, then the risk increases even if no money is involved.
  • The combination of big money and inflammatory material is particularly perilous.

 

My advice: if you are going after Big Oil, Big Med, Big Food, Big Religion, City Hall, Wall Street or Mr and Ms Big, don’t go it alone. The Bigs may not care if they have a losing case. They often file SLAPP lawsuits to intimidate critics and overwhelm them with legal bills. Get a lawyer on your team early in the process or align yourself with a public interest group such as Electronic Frontier Foundation before you publish. Also look into media perils insurance.

For everyone else, here’s some general advice.

Fiction writers:

  • Resist the temptation to use the bad toupee! If you base a fictional character on a living person, change physical details and life histories so the person is not recognizable. Don’t take the short-cut of using a highly identifiable flaw or quirk. The more villainous the character, the more changes you should make.
  • Don’t rush to release a getting-even book. Do you secretly want your ex-spouse, boss, parent or mother-in-law to recognize themselves in your work? Will changing one letter in a name protect you? Probably not. If you are working on a getting-even book, write the manuscript with passion, then put it aside for months, even years. With time and perspective, you will be better able to mask your characters and make the story more universal (and better).
  • If you want to skewer someone, use parody. But don’t go half-way. Your humor should be so obvious that no one can reasonably read it as a statement of fact.
  • Add the standard disclaimer to fiction pieces. “This book is a work of fiction. Any resemblance to actual events or persons, living or dead, is entirely coincidental.”
  • If you are fictionalizing true events by adding scenes and dialogue, take a look at my last post about the right of publicity. Make sure you add a disclaimer such as “This work is based upon real events. Certain events, dialogue and characters were created for the purposes of fictionalization.”

Non-fiction writers:

  • Don’t use labels such as crook, cheat, pervert, or corrupt. Stick to verifiable facts and your personal, emotional responses. Remember the writing adage, show, don’t tell.
  • Be cautious about saying something like “don’t do business with XYZ company.” Tell the story of your experience with the company. Your readers will get the message.
  • Retain records to support your statements. Hyperlink to your sources.
  • When speculating, be clear you are taking a guess. State your opinions as opinions and gut feelings, not as facts.
  • Rely on publicly-disclosed information, such as court documents and news reports. Court filings are a rich source of juicy information.

For all writers:

  • When in doubt whether a statement might be defamatory, consult a publishing or First Amendment attorney. You will sleep better.
  • If accused of a defamatory statement, consider publishing a retraction.
  • Always reach for the truth when writing—it’s the best defense.

 

Photo: bigstockphoto.com. Amazon links contain my affiliate code.

tbd advanced publishing starter kit

6 Comments

  1. Michael N. Marcus

    This is an excellent, thorough treatment of a complex subject that few writers, I hope, will have to deal with as either perp or vic.

    Keep in mind that justice is seldom free. It can be extremely expensive to fight an individual defamer, or the publisher of defamatory material.

    Even though defamation is a crime, it will be probably be difficult or impossible to convince a district attorney or prosecutor to help you get justice when defamed.

    Starting on 6/25/10, my small publishing company, Silver Sands Books, and I became the targets of an elaborate online smear campaign.

    I was unjustly portrayed as being a pornographer, dog rapist, child rapist, pedophile, wife burner, member of an international child porn ring, drunk driver, being listed on the California registry of sex offenders, using the Internet to “groom” children for sex, being investigated by the FBI, a threat to my neighbors…and more. The attacker’s supporters publicly called for my caging, castration and killing.

    The attacker published two online petitions directed to the Connecticut governor try to get me put on the Connecticut list of sex offenders.

    Silver Sands Books was accused of publishing books for pedophiles. The attacker tried to get Lightning Source to stop printing and distributing my books, accused Lightning of breaking the law, and threatened to sue them.

    My attacker falsely claimed that Amazon.com had stopped selling my books because I am a pedophile. My friends on Facebook and neighbors received messages accusing me of the horrible crimes mentioned above.

    Eventually most — not all — of the websites carrying false information deleted it.

    “Don’t be evil” is the unofficial corporate motto of Google, but they don’t seem to care if their products and services are used by others to be evil.

    Google owns Blogger. Blogger hosts the blog that has been the main attack venue against me. That blog contains directions to my house plus untrue, vicious, hurtful and absurd accusations (e.g., I was imprisoned in California for four years, I am on a government list of sex offenders, I am a danger to local children, I burned my wife and I raped two human beings and a dog). You can laugh at the last one.

    This would seem to be pretty obvious defamation, a violation of Google’s terms of service, as defined by Google, and a sufficient reason to have the blog shut down:

    Google says:
    What is Defamation?
    •False and untrue communication published with the specific intent of injuring another person’s reputation
    •Injured person must be identifiable

    HOWEVER, as absurd and obviously defamatory as the blogger’s claims are, Google lacks the confidence to make an official judgment of defamation and to protect my family from our online attacker and those he or she may incite.

    The company says, “We do not remove allegedly defamatory content… The only exception to this rule is if the material has been found to be defamatory by a court, as evidenced by a court order.

    I’ve tried to convince Google that the material is so obviously defamatory that they don’t need a judge’s declaration, but they are committed only to protect themselves against a possible suit by their blogger — not to protect people injured by their blogger.

    I can’t afford to go to court 3,000 miles away from me to get a judgment. It could take a long time to get the judgment. And if I win, Google can afford to appeal, indefinitely.

    I wrote Internet Hell about my ordeal. https://www.amazon.com/dp/B00AS44XS8

    Reply
    • Anne R. Allen

      Fascinating, Michael. I just bought your book. I wrote an entirely fictional book with a protagonist–also a writer who had worked for Rolling Stone–who has this happen to him. He ends up staging his own death because it’s impossible to fight this stuff. I had no idea there was any real-world parallel. In my novel–SO MUCH FOR BUCKINGHAM–the motivation for the attack is a bad review on a blog and the crime he’s accused of is stomping kittens, but otherwise the similarities are eerie. I draw a parallel between his plight and that of Richard III, who’s probably the victim of some of the worst defamation in history.

      Great post, Helen. Thanks! This is really useful.

      Reply
    • Helen Sedwick

      Michael, What a nightmare! Most writers worry about committing defamation, and they haven’t thought what would happen if they became targets of defamatory statements. Have you figured out who is targeting you? Are they worth pursuing?

      Reply
      • Michael N. Marcus

        Helen — I’m 98% sure I know who the attacker is. According to reliable sources, he lives in a homeless shelter and has no assets worth chasing after.

        Maybe I get the last laugh, but I’d prefer for the attack blog to be deleted.

        Reply
  2. Kate Rauner

    Beware of Poe’s Law: without a clear indicator of the author’s intent, parodies of extreme views will, to some readers, be indistinguishable from sincere expressions of the parodied views.

    Reply
    • Helen Sedwick

      Kate, how true. Many readers take articles from The Onion as real news.

      Reply

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