Understanding Libel for Writers

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Below, we examine legal issues surrounding the world of online publishing and self-publication. Online publishing, where writers often produce content and publish for free, has provided another avenue for copyright infringers. As the writer, if you have quoted from another text, it is a good idea to obtain consent from the original author. Be aware that copyright ends 70 years after the author has died, at which point the work enters the public domain and can be used without consent.

Copyright is automatic in Australia.

Selling Articles Within the Law

However, it may be the case for self-published authors that they find someone has infringed their work online. It is often costly and difficult to enforce your rights with an online infringer, and unless the infringers have benefitted unjustly, it is typically impractical to pursue legal action. Furthermore, some writers choose to support others using their characters or settings for their work as long as it is not for commercial gain.

Copyright and the Freelance Writer

As online self-publication and ebooks are now common among writers, defamation has become the responsibility of the writer. Generally, material that is printed is permanent and open to an action from the defamed individual.

Libel vs. slander

Defamation law is complex, and it is best to speak to a lawyer if you are concerned about possibly publishing defamatory material. There is still no law in Australia that specifically addresses invasions of privacy. However, this may soon change. This may be relevant for authors who write memoirs in particular, as personal experiences involve other people who may not have wanted that experience publicised. Whether intentional or accidental, that may appear in your work.

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Remember that you own the copyright in your work and that you can enforce these rights against infringers. If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

All writers should be aware of the risk of defamation in fiction and take precautions to avoid it, even accidentally. There are several excellent blog posts explaining tort liability civil liability for money damages arising from fictionalized works containing false defamatory statements about a character who bears similarities to a real person. What if you create dishonest, criminal or otherwise unsavory characters and give them names that happen to also belong to real people?

Can you be sued? Can you lose? Plaintiffs get to play a legally tricky game in fiction-defamation cases.

I made them up. Courts examine similarities such as geographic location, physical description, occupation and—most relevant to this post—names. Bryson v. News America Publications, Inc. We are not persuaded by this contention. In addition, the setting of the story, the events described therein, and the identification of the writer as a native of southern Illinois all lead to a reasonable conclusion that third persons familiar with both the plaintiff and the defendant would understand the story as referring to the plaintiff.

Note that this did not mean the plaintiff won the case, but only that the lawsuit was permitted to continue. Most likely, the case settled after the appeal. In Bryson , the fact that the character had the same name as the plaintiff played a central role in the result, but as in other successful fiction-defamation cases, there were more similarities than name.


The Definition of Libel - What Makes Something Libelous?

Most fiction writers probably draw inspiration for at least some characters from real people. Change their physical appearances, locations and jobs—as many things as you can without taking away what it is that made them inspiring to begin with which can be a difficult tightrope to walk. In some fiction-defamation cases, the evidence is fairly clear that the fictional character was indeed based on the plaintiff, but what if a writer accidentally defames a person by giving a disreputable character the same name as a real person? Recall that in the Bryson case the story was clearly labeled as fiction.

Limit the names of disreputable characters to first names when feasible, which makes it much harder to prove identification. But of course some characters require a full name for story-telling purposes. Use common names.

PDF Understanding Libel for Writers

Most of us want to give our characters interesting or memorable names. And even with common names, the risk of identification can increase proportionately with more description. Go to the other extreme and pick extremely uncommon names. In my first novel, Psycho-Tropics , I was almost ready to go to print when I discovered I had given a main character—a sexist, pill-popping criminal defense lawyer in Broward County, Florida—the same name as a real criminal defense lawyer in Broward County, Florida, purely by accident.

Go beyond just a worldwide name search. If your bad actors are associated with a particular city, add the name of the city to the search.

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  7. If the same name comes up, I recommend changing it.