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Minimizing Libel Risks: Part 2, Issues You Might Not Expect

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by Steve Gillen, Partner, Wood Herron & Evans –

Steve Gillen

Minimizing Libel Risk: Part 1 – The Basics

Part 1 of this series examined the basics of libel law in the United States. But if your libel education stopped at grasping the basics, you might be in for one or more surprises because of other countries’ laws and rights and because of fact vs. fiction pitfalls in the United States, as described below.

Libel Tourism Hazards

U. S. publishers, accustomed to First Amendment free press protections, have been caught off guard in recent years by less press-friendly libel laws in other countries and by just how easy it is for a would-be plaintiff to travel in search of one of these more favorable forums willing to exercise jurisdiction—a tactic sometimes referred to as libel tourism.

Early cases of libel tourism involved a Saudi businessman, Sheikh Khalid bin Mahfouz, who was accused in a number of publications of involvement in financing international terrorism. Mahfouz, though a citizen of Saudi Arabia, traveled to England to pursue his accusers, where he took advantage of the very low bar set for libel plaintiffs under English law to sue or threaten to sue at least 29 times.

A quick comparison of English and U.S. libel law explains Mahfouz’s move:

  • In England, the publisher-defendant has to prove that the published statement at issue is true. In the United States, the initial burden is on the plaintiff to introduce proof of falsity.
  • Opinion is not protected in England as it is in the United States. This compounds the impact of the publisher’s initial burden, which becomes proving that its opinion is substantively true.
  • In England, parody and satire are not protected forms of speech as they are in the United States.
  • The publisher is liable without regard to fault in England. In the United States, the burden is on the plaintiff to prove, at a minimum, that the publisher acted negligently, and in some cases that the publisher acted with actual malice.

Little wonder, then, that English libel plaintiffs win more than 98 percent of the cases they bring.

And it is relatively easy for an English court to exercise jurisdiction. In the case of Mahfouz, an academic book written and published in the United States was subjected to suit in England because just 23 copies of it had been sold into England via Amazon.com.

England is not the worst place for a publisher to face a libel claim. In many European countries the dead can be libeled (in the United States, libel law is limited to protecting the reputations of the living). In other countries, such as Senegal and Thailand, libel has been criminalized so that a publisher might be jailed (or worse), and a single copy of an accused work purchased via the Internet for shipment to these countries—or the download there of even a single e-book—will subject its publisher to exposure.

The good news is that a judgment overseas will not necessarily have much impact on you unless you sometimes travel to the relevant country or have assets there (such as consigned inventory or royalty receivables).

There was a time when you also had to worry about a foreign judgment being domesticated and enforced in the United States. But as a consequence of, and a partial solution to, libel tourism, both houses of the U.S. Congress unanimously voted to enact a federal law making foreign libel judgments unenforceable in U.S. courts where domestic enforcement of the foreign judgment would offend U.S. notions of free speech and press.

The SPEECH Act (for Securing the Protection of our Enduring and Established Constitutional Heritage) was signed into U.S. law by President Barack Obama in 2010. Just one year later, the first case granting declaratory relief under the act resulted in insulating a U.S. defendant from domestic enforcement of a Canadian libel judgment.

The Right-to-Be-Forgotten Risks

U.S. publishers are often surprised to discover that a right to be forgotten has developed in some countries and is evolving in others. Where this right is recognized, true but unflattering historical events that would be fair game for publication under U.S. law may be shielded in ways that hamper publication of some biographies or books about sensational past events.

Although publication of historical facts is protected by the First Amendment in the United States, a right to have true but embarrassing information shielded from publication exists in other jurisdictions, notably Germany, England, France, Spain, and perhaps soon the whole European Union.

An early case with U.S. implications involved two German men implicated in the sensational murder of a German actor in 1990. The two men, half-brothers Wolfgang Werlé and Manfred Lauber, were convicted of the crime, served their sentences in a German prison, and were released in 2007 and 2008. An English-language Wikipedia article described the crime and named the convicted killers, notwithstanding German law that allows a criminal’s name to be withheld from publication once the criminal has served a prison term.

In 2009, lawyers for Werlé sued the Wikimedia Foundation in Germany to have the article withdrawn, citing a 1973 German court decision that allows the suppression of a criminal’s name in news accounts once he is released from custody. They obtained a default judgment there, but they have not been able to enforce it in the United States.

Fiction/Faction Dangers

Two of the essential elements of a libel claim are that the accused defamatory statement must be an assertion of an actual fact and that it must be about a real, living, and identifiable person. Accordingly, one would think that works of fiction would be immune from libel claims. After all, a work of fiction is, by definition, a product of the author’s imagination, and it is not held out to be either factual or about real, living people.

But fiction is often inspired by an author’s experiences (sometimes too closely), and literature is full of instances of offended authors getting even with their real-life oppressors by casting them in unflattering or unsavory roles. When that happens, what is presented as fiction moves away from the truly imaginary and crosses over into the more risky territory sometimes referred to as faction.

Whenever a work labeled fiction can be reasonably read as stating actual facts about a real person, courts allow juries to decide whether the work conveys defamatory meaning (and we know what happens when these cases are allowed to go to the jury in the United States; see Part 1 of this series in the July issue).

A case brought in Illinois in 1996 concerned a short story published in Seventeen magazine as part of a group of stories titled New Voices in Fiction. The story’s author, a native of southern Illinois, wrote in the first person about a high-school classmate named Bryson and described her in the story as a “platinum-blond, blue-eye-shadowed, faded-blue-jeaned, black polyester-topped shriek” who lives “on the other side of town” and who participated in certain specified unchaste (or words to that effect) behavior.

As it happens, there actually was a young woman named Bryson who had gone to high school in southern Illinois, and when she sued, claiming that readers who knew her would reasonably recognize this short story as a false and defamatory allegation about her, the Illinois court decided that she was right, even though the story had been characterized as fiction.

There was no discussion in the court’s opinion about whether the author and the real Ms. Bryson attended high school together or whether they even knew each other (presumably because they didn’t). As one commentator said, what matters is not who is aimed at, but rather who is hit. So the intent of the author may go into the mix, but it is not determinative, and an absence of intent will not save author or publisher if a reasonable reader perceives a defamatory meaning.

There are at least two strategies for avoiding faction-type libel claims. One focuses on dissuading potential plaintiffs from stepping forward, and the other focuses on effective use of a disclaimer.

To dissuade potential plaintiffs from suing, an author might imbue a character based on a real person with some physical or mental defect or some potently humiliating attribute so that no self-respecting person would choose to identify with the character by complaining. Michael Crichton reportedly used this tactic after he was offended by a critical profile written by a New Republic columnist. Crichton’s next novel included a character with a name nearly identical to Michael Crowley, who, like Crowley, graduated from Yale and was a political journalist in DC. But the character was cast as a pedophile (with certain specified anatomical features correspondingly childlike). No claim was ever advanced.

The disclaimer strategy relies less on human vanity and more on a straightforward message calculated to explain the limited purpose for which real places or events have been employed and to dispel absolutely the potential for any reader reasonably to read in a defamatory meaning about a real, living person.

For example, in writing a novel that delivers a social commentary on past practices in the institutionalized treatment of the infirm and insane, an author might choose to draw on real places and events to lend credence to the story, and the publisher would make it unequivocally clear in cover copy and promotional materials that the work is a novel.

The publisher of such a novel would be well advised also to include an explanation like the following as a prominent element of the front matter:

An Important Note to Readers
The [Name] State Institute for the Feeble Minded was a real place in [Name] County, [State]. It existed at a time in our history when accepted notions about what constituted a disability, how to care for the disabled, what they might be capable of accomplishing, and even what to call them were very different than they are today. Many of the places and historical events in this book are real and help anchor the story. But the characters and events depicted, though inspired by the people who endured that era, have been fictionalized for dramatic effect. Names, characters, places, and incidents have been altered and molded by the author’s imagination and are neither represented nor intended to be a literal account of people or events. Though the story may be evocative of certain actual events, locales, or persons, living and dead, the details are fiction and not fact.

Protection Possibilities
Apart from being mindful of the increased risk when your books travel, being careful with your facts, and being crystal clear about the line between fact and fiction, there are a few other things to keep in mind as you work to manage your risk for libel claims.

Consider, for example, retractions. Usually thought of in connection with newspapers and other serial publications because of opportunities they offer to correct or amplify content in a later issue, retractions can have some impact in book publishing through reprints and errata sheets.

If, despite your careful attention, a libel claim finds its way to your desk, the prompt offer of a correction in the next printing—or, in some cases, in an errata sheet made immediately available to libraries and distributors and inserted into existing stock—can go a long way toward defusing tensions and reducing the likelihood of litigation.

An offer of retraction has psychological impact as a demonstration of empathy and contrition, but retractions can also have legal impact. This varies from state to state. In some states, the fact that a retraction was offered or published is admissible in mitigation of damages or to establish a lack of malice. In at least one state, a potential plaintiff’s demand for a retraction may be a prerequisite to filing suit. Some state statutes purport to require publication of a timely served demand for retraction, though provisions like that are generally thought to be unconstitutional as compelled speech.

So your opportunities to use retractions to good effect will be determined by where you are located or where you are likely to be sued. Still, retraction is a tactic you should not overlook.

Media perils insurance is also worth attention. No matter how cautious you are, some libel exposures may not be evident until they are already at your door. For this reason and others, media perils insurance coverage should probably be part of almost every publisher’s risk-management plan.

A number of providers exist, and IBPA provides a link to one that will allow you to apply online for coverage ranging from $0.5 million to $40 million and at rates from $2,500 and up, depending on the size and nature of your publishing program. Check this link for more details: www.ibpa-online.org/publiabilityins.

Steve Gillen is a lawyer and partner in the intellectual property firm of Wood Herron & Evans and has focused his practice on publishing and media matters for 30 years. He is a member of IBPA and a frequent contributor to the IBPA Independent.

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