If the answer to this constitutes more variables than are usually tolerated in GQ, please feel free to move to CS, but -
what constitutes libel in a work of fiction?
If an author wants to incorporate a living person into a work of fiction and attribute to them some fictionalized behavior, beyond a disclaimer from the author, are there any protections or definitions of what is reasonable to include as fiction or does the author run the risk being sued for any and all occasions of behavior covered by disclaimer?
Is the living person famous or notable? If so, the protections afforded satire and parody are a strong defense against libel. If not, then they’re not.
If that person is a “public figure,” then it must also be shown that the statement was made with “actual malice” or “with reckless disregard for the truth.”
As far as public figures are concerned, two cases might be helpful to understanding – one was Carol Burnett’s successful claim against the National Enquirer that she was drunk in public. The other was Jerry Fakwell’s unsuccessful claim against Hustler for a cartoon that suggested that Falwell had engaged in sexual relations with his mother. In the latter case a key finding was that a reasonable member of the public was not likely to believe that the statement was true.
Libel is a false statement of fact. By definition, fiction is not fact, so it’s pretty safe to write anything.
Many years ago, for instance, Robert Coover wrote The Public Burning, with Richard Nixon as a main character. He didn’t need permission to do so (admittedly, the Nixon was something of a good guy in the book, so a suit was unlikely, but he clearly behaved in many un-Nixon-like ways). I can’t think of a case where someone successfully sued because of his portrayal in a novel (the Burnett case above was a news story, and thus a false statement of fact).
Public figures, BTW, have to go further to prove libel. You can’t just make a false statement of fact – you have to actively know that the statement was false. If an informer who you believed trustworthy gave the information to you, you will likely win the case.
People can threaten to sue, and if they can afford the lawyers, they may follow through to inconvenience you. Legally, they have little chance of winning, but the publisher might want to avoid the hassle and expense and settle.
In the US, yes. In other jurisdictions, not necessarily. Truth is not always a defence to libel and slander in Canada, for example. There was a famous case where someone truthfully claimed a public figure was gay, but was convicted of libel on the basis that said public figure had not outed himself. (I don’t know if the result would have been any different had the claim been made in the context of a fictional work.)
Here was the Appeals Court finding in Pring v. Penthouse, in which an actual Miss Wyoming sued the magazine over a story about the sexual antics of a fictional “Miss Wyoming.”
New York attorney Ravi Batra filed a libel suit against the series Law & Order for a 2003 episode in which a (purportedly) fictional attorney named Ravi Patel was implicated in a bribery scheme. According to this story from December of last year from a website called “rights of writers”, at least one court has allowed the case to go forward rather than dismissing it. The article references a Wall Street Journal story which claims it is the only such lawsuit in New York in that last 25 years which hasn’t been summarily dismissed. The first article also links to this NY Times story, which lays out some of the details of a real-life situation which seems to have inspired the TV show, the biography of attorney Batra, and the fictional actions of the Patel character. The real life Batra was peripherally involved in the real life case, but was not accused of any wrong-doing whatsoever, but the fictional Patel was involved in wrong doing. Perhaps that’s why the case was still alive 10 months ago.
I haven’t found any further stories about the lawsuit since then, so I don’t know whether the case is still alive, or has been dismissed or settled.
The Times story also mentions a legal “doctrine” called “libel in fiction”, so the OP may want to do some searching around using that phrase.
Basically, if I write a story that has a character who’s a child molester and serial rapist who goes by the name “Bayo Jim” on the “Straightest Dope Message Board”, and you sue me for it, I won’t be able to successfully claim it was just a work of fiction and therefore I didn’t libel you.
Don Imus once introduced El Paso native Sam Donaldson with a snippet of Kinky Friedman’s song “Asshole from El Paso.” Donaldson called the next day and said “I consulted a lawyer about suing you, but he told me something about truth being a defense against libel.”
In U.S. law, at least conceptually, it might be possible for an ostensible work of fiction to be defamatory if it is written in such a way that a reasonable person is likely to believe that it’s true. That’s why I gave the Falwell example, because the key finding was that no reasonable person would believe that it was a statement of fact about Falwell.
It’s hard to prove, for instance, I knew this girl who one day decided to visit her grandmother. So she got a basketfull of goodies and put on her red cape and red hood and headed out into the woods. Well no sooner did she meet this man making woof whistles at her, on her way to granny’s house, then someone published a book about her
Seems there are some novel ways in the US to get around the truth defense.
This blogger was sued for $60,000 by a guy he wrote about. Everything he wrote was true. The suit was not for libel but for harming the other guy’s ability to earn money (or something like that). The blogger lost the initial case (not sure if it was appealed).
Significantly, this was not a defamation claim. It’s right there at the beginning of the article, in the fifth paragraph. So no one actually “got around” the truth defense.
I think you have to read the case law in the state wherein the alleged defamation was made. I don’t believe there is federal case law of civil defamation. In Illinois, 40 years ago, the last time I studied Illinois law, truth was not always a complete defense, even if the person was not a public figure. It still could be defamation if the statements were made with malicious intent. Correct me if I’m wrong (a superfluous statement).
Defamation claims are made under state law, not federal law, but the truth defense is derived from the First Amendment. I don’t know that there has been a definitive statement by the Supreme Court that truth is an absolute defense under the First Amendment, but I don’t think anyone expect that it could possibly rule otherwise.
It’s federal precedent that establishes the public figure standard, as well as the fact-opinion dichotomy, and the bar on strict liability. The Falwell case is a U.S. Supreme Court case interpreting the First Amendment, and thus is binding on all state courts.
