When contemplating whether to pen something potentially controversial, your best defense is knowing when your work is protected and when it crosses the line. While libel laws vary from state to state, there are general principles you can rely upon. (This article originally appeared in Writer's Digest magazine.)
By Richard D. Banks
In a litigious society such as ours, libel suits sometimes serve as the chief weapon against the First Amendment’s guarantee of free speech and a free press. Even the most prestigious publications are susceptible: In November 2016, a jury awarded Nicole Eramo, a University of Virginia administrator, $3 million in a libel suit brought against Rolling Stone and the writer of an article—an article that was quickly discredited and subsequently retracted—that portrayed Eramo as indifferent to an alleged rape at the university. The defendants appealed and in April of this year, the case was settled for an undisclosed amount. Such cases can leave writers wary of what they’re willing to write—unsure of whether to trust a source or leery of accidentally publishing misinformation.
When contemplating whether to pen something potentially controversial, your best defense is knowing when your work is protected and when it crosses the line. While libel laws vary from state to state, there are general principles you can rely upon.
Libel is a false statement published as fact that harms the reputation of a living person, existing business or other organization. There are four factors that together fulfill the legal definition of libel. Writers must be found at fault for all of the following elements:
- The work must contain a defamatory statement that damages the reputation of the plaintiff.
- The identity of the plaintiff in the piece must be perceptible to a third party. So long as the plaintiff is recognizable, you cannot claim protection from libel by having used a different name, or by claiming that the work is fiction.
- The work must have been published and seen by a third party. This includes all written media, from print to online publications—as well as digital communications in the form of email or tweets.
- The material in question must be patently false. The First Amendment’s protection of free speech arises from the value placed upon
discussions and the expression of opinions in a democratic society. Therefore, “opinions” are safeguarded, since they are technically neither true nor false. Libel laws apply only to statements of fact. Thus, if you wrote a piece wrought with opinion and the facts of it are true, you have not committed libel.
Proving Actual Malice
Ever wonder why, with all the seemingly untrue things written about politicians and celebrities, libel suits are relatively rare? The landmark 1964 Supreme Court decision in New York Times Co. v. Sullivan is largely responsible, as it held that to prove libel involving a public official or figure, in addition to the required four elements above, the writer or publication must be found culpable of actual malice. So what does that mean? To be found culpable of actual malice, it must be shown that the defendant acted with the specific intent to cause harm, or with “a reckless disregard” for the truth. Hence, sloppy reporting or careless research can satisfy this requirement.
Avoiding Libel Claims
In addition to being cognizant of the four elements of libel, here are some other steps you can take to protect yourself when you venture onto unsteady ground.
- Obtain consent or have a release signed by the subject in question.
- Consider libel insurance. If you authored a book, you can generally
be added to your publisher’s policy; otherwise, it is on you and the premiums are costly. Members of the Society of Professional Journalists are offered discounts for some insurance programs, as are members of the Authors Guild. Visit their websites for more information.
- When facing a potentially thorny situation, seek advice from an attorney familiar with libel law. Many publishers have house counsel or outside attorneys available, and the Authors Guild and SPJ may provide legal services to its members—especially if it’s a First Amendment issue.
The unfortunate truth is that anyone can sue anyone for just about anything. That said, if you keep the elements of libel in mind as you write, as well as take the proper precautions when applicable, then you will likely find yourself well-fortified to withstand a libel charge.
About the Author
RICHARD D. BANK is an attorney and professor of publishing law and creative nonfi ction in the graduate school at Rosemont College. He’s also a freelance writer, writing coach and the author of eight books, including Th e Everything Guide to Writing Nonfi ction and, most recently, the memoir I Am Terezin. Find Bank online at richbankwriter.com.
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