5.2.1 Defamation of Character

DEFAMATION OF CHARACTER
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The BBC's Get Writing(1) had this to say about defamation of character:

By law, you can't defame the dead. But while it may not be against the law, you can cause great anguish to the living by doing so … Joyce Carol Oates's Blonde presents a picture of Jack Kennedy with which the Kennedy family must have been far from happy. But Kennedy, in this story, becomes the universal embodiment of the male rapaciousness and callousness with which Marilyn had to contend throughout her life ... a perfect example of the way an author, Oates, is willing to risk the anguish or wrath of individuals in order to nail a moral wrong.

For the living, defamation of character requires:

1. The statement made MUST be true, and proven to be true.

This includes not only statements made against individuals, but against businesses and products.

It's not defamation of character it it's true, but you may have to prove it’s true. Most of the world now knows that President of the United States George Clinton inhaled marijuana, so saying he did so is not defamation of character. If no one knew and you saw him do so, though it may be true, if you can't prove it you are liable for defamation of character.

Statements made against a business or product must also be provably true. For example, if you say your cheeseburger from MacDonald’s includes dog meat, you need to be able to back it up with scientific proof. If you say that your cheeseburger from MacDonald’s tastes like dog meat, that’s not defamation of character, that’s an opinion.

2. The statement is read or heard by at least one other person.

This makes all published works of fiction susceptible. It also means anything you post on the internet. People today are blithely unaware of how far written statements can carry through social media. And, as you will discover below, written defamation is a criminal offense whereas spoken defamation is not. The written word carries power.

3. The statement is understood to damage another person’s reputation.

This is really the crux of defamation of character. In Hustler Magazine versus Jerry Falwell, Larry Flint’s lawyer appeared before the Supreme Court with regard to a fake advertisement published by Hustler Magazine about Jerry Falwell drinking and having an incestuous relationship with his mother in an outhouse. He argued that the cartoon was so outrageously unbelievable that it had done no damage to Jerry Falwell’s reputation. He won the argument, partially because of that, and partially because the court felt satire of public figures had a protected history in the United States.

Remember, defamation of character requires that the statement was made, that it is false, and that damage was done.

Defamation of character falls into two categories, only one of which is of specific concern for writers.

Slander

Is not a criminal offense.
Is the verbal form of defamation of character.
Is harder to prove because you first have to prove someone heard it.

Libel (important to writers)

Is a criminal offense.
Is the written form of defamation of character.
The hard part is already proven because the words are already written. It includes symbols, drawings, or the written word. So, those pictures you drew of your high school science teacher with the head of a pig were technically libelous.

So how does a writer avoid being sued for libel? Thankfully, there are two actions a writer can take when dealing with real people.

First, you can disguise the details about a person so thoroughly that most people would not know whom the character was based on. If the only thing that made the person identifiable as that character was to sue you, he or she will be hard-pressed to show how your story damaged their reputation. If no one else knew it was about them until they said something, that is not justifiable grounds for defamation of character.

And secondly, you can get permission in writing when you must openly base your story on a real incident or person, and if possible, involve them in the process. Thank them graciously in your acknowledgments, and make an honest effort to be fair. Still, problems may arise, so be willing to take the risk and defend yourself in court if you think it important enough.


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FOOTNOTES

(1) Tremain, Rose. "Writing Historical Fiction," Get Writing. BBC Worldwide Limited. www.bbc.co.uk/dna/getwriting/module9p, accessed 2007.