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From what I understand, truth is a defense against a charge of libel. More to the point, I've been told that a statement need not be true if it represents a "fair comment" based on the underlying facts.

For instance, suppose there is a person that frequents parties, bars, etc., goes "one on one" with people of the opposite sex and engages in public displays of affection. Under the circumstances, a statement that this person "gets around"/dates/sleeps a lot would be "fair comment," reasonably inferable from known facts. My understanding is if this person were somehow actually a virgin, s/he would not be able to prove libel. Whereas a "recluse" who was "never" seen in public with someone of the opposite sex might.

In the Red Hat Club case, plaintiff Vick Stewart won a libel case because defendant created a character, Susu, whose "backstory" was virtually identical to Stewart's (meaning that she was poorly disguised). The author then created a "front story" of an alcoholic and promiscuous woman very different from Stewart's real "story." Given these circumstances, I doubt that the purported "fiction" represented "fair comment" on Stewart, given her real back story. Meaning that the writer would also have to fictionalize the backstory to avoid a charge of libel.

Two questions, one for lawyers and one for writers. For lawyers, is my understanding of "fair comment" correct? For writers, if the author of the Red Hat Club had changed Vicki Stewart's "backstory" to the point where the "novel" reasonably followed from the backstory, and avoided unnecessary "incriminating" details, could that be a good way of disguising Stewart?

  • I consulted Meta and decided that answering this Q is within the rules for the site, so I've removed my comments. – Mr. Shiny and New 安宇 Apr 7 '15 at 15:42
  • @Mr.ShinyandNew安宇: Fair enough. Thanks. – Tom Au Apr 7 '15 at 21:37
  • I have argued endlessly against this kind of question. The reason for this is that only a court can decide what libel is, and different courts will likely disagree. There are no two similar cases that have gotten the exact same ruling in court, and there are no two courts that have given the same ruling in the same case. If you want to avoid a court case, make up your story. If you write about existing persons, there is nothing that will keep you safe from getting sued and losing, except being more obscenely rich than your adversary. – user5645 Apr 8 '15 at 9:58
  • @what Hmm, I think that overstates the case a bit. In the U.S. and U.K., anyway, courts try very hard to be consistent. That is why they talk so much about "precedent". If another judge in a similar case ruled a certain way, the judge tries to lean toward giving a similar ruling. The idea is that often consistency and predictability is more important than the details of what would make a good rule. Like, suppose someone said that he thought football would be improved if field goals were worth 4 points instead of 3. I'm sure people could give good arguments either way. But I think most ... – Jay Apr 8 '15 at 20:59
  • ... would agree that a game where sometimes the umpire said it was worth 3 points and other times it was worth 4 points would make for a very unfair and confusing game. Even if you believed that the game would be better if it was 4 points, you probably would prefer it to be 3 than for it to be up to the umpire's whim at the moment. Of course courts are not 100% consistent. Sometimes a judge thinks a precedent is misguided enough that he tries to establish a contrary precedent. Etc. – Jay Apr 8 '15 at 21:02
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After consulting the Meta question about answering questions, I've decided to post what I've found regarding libel in fiction. I am not a lawyer. I am summarizing from this blog post supposedly written by a lawyer, but the disclaimer at the end is maybe the most important thing to note:

Libel law is fact specific. Further, [there] is no single body of law [that] applies. Today, information travels far and wide. Many countries do not recognize the protections [the United States] gives authors and publishers. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

In short, as you mention in the question, fiction can be grounds for libel if enough of the details of a fictional character match a real person, such that the real person can be "easily identified" by those who know them.

The way to avoid this is to

  • Change your character so that it is obviously not the same person. Mix in other traits or history that contradict those of the real person, etc. Be careful that you do this in a way that doesn't attribute these traits to the person you're trying not to libel, but instead differentiates your character from your potential plaintiff.
  • Make some of the details obviously fictional. Example: a plaintiff sued Penthouse Magazine for libel regarding her supposed ability at oral sex. She lost because the magazine described her talent as "causing levitation" which is clearly untrue.
  • Wait for your real-life person to die; they can't sue for libel after they are dead.
  • Just leave out the details that make them identifiable.

There doesn't appear to be a bright line that you can use as a guide to say just how much real-life characterization is allowed before you step into libelous territory.

Libel law is fact specific.

This is the key point. It could theoretically be a single thing which links a character to a person, and a single "libelous" statement that causes you trouble.

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Let's take a step back. What is your goal in writing this story?

If you think that some real person did something that would make an interesting story, and you don't have any desire to praise or condemn the real person, than just change details of the events and the person sufficiently that there is no obvious similarity. Like I said in response to another question on libel, if the real person is a tall thin white man from Kansas, make your character a short fat black woman from Oregon. If the real event was an ingenious robbery of a warehouse where jewels were stolen, make your story an ingenious robbery of an office building where microchips were stolen. Etc. Pick out the parts that you think make the story interesting and change everything else.

If your point is that you want to publicly blast some person who you think is deserving of condemnation, then you have an inherent problem. If you make the association obscure enough that a judge and jury will say that there is no evidence you are talking about this particular person, than readers are likely to not realize you are talking about this particular person either. If you make it clear to the reader, it will be clear to the judge. Maybe if you're very skillful at it you can make it just clear enough that readers know who you mean, but then in court you can deny it and the evidence won't be strong enough to prove you're lying. But not only would that seem like a very unethical thing to do, but it would be very tricky to pull off in practice, I'd think.

The other alternative is to be sure that you have your facts right. If you add any speculation and present it as fact, you are setting yourself up for legal trouble.

  • I'm trying to identify a standard of parallel construction between "story" and "backstory." For instance, in "Moneyball"writers.stackexchange.com/questions/16006/what-was, the main story was only "slightly altered" so a slight alteration of Billy Beane's assistant was acceptable.(Everyone knows that Peter Brand is really Paul dePodesta.) Whereas in Red Hat Club, the slight alteration of the backstory was not acceptable because the main story was 1) totally altered and 2) didn't follow. So my question was, does it make sense to alter the backstory to a similar extent as the main story? – Tom Au Apr 8 '15 at 21:23
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One of the most interesting court cases was the one where a former Miss Wyoming sued Penthouse (and an author). She won an award of $26.5 million in a lower court, but the verdict was overturned on appeal. This largely set today's boundaries of "libel in fiction."

There are three major issues, of which two played a role in the trials. The first issue was that the heroine of the piece a thinly disguised version of Miss Wyoming. The jury found that this was clearly the case, and awarded damages because the judge (wrongly) told them that this was the crux of the case.

On appeal, an appellate court found that the plaintiff (Miss Wyoming) had failed a second test, establishing the alleged "fiction" as a factual statement. The reason was that the fiction had men "levitating" in mid air (a physical impossibility) after Miss Wyoming supposedly performed oral sex on them. That is, the court found that "levitation" sent a "strong signal of fiction" that would prevent "reasonable" people from taking the story as true.

A third issue was raised by a dissenting justice, "defamation." The judge conceded that the "levitation" was fictitious, but that the allegation of "fellatio" was defamatory. At that time, (the late 1970s), it was considered "deviant" behavior and standing alone, it might have been considered defamatory. The other justices found that the piece was distateful, but protected under the First Amendment because it did not meet requirements to be a (false) statement of fact.

It's interesting to note that the standard for "defamation" changes over time. In the late 1970s, contemporaneously with the above, a judge found that calling someone a "bastard" was not defamatory in part because one out of four newly-born Americans at the time were literally born on out of wedlock. After 2015, it's probably not defamation to falsely call someone a "homosexual," because a "reasonable" person would not find it highly offensive" (although an "unreasonable" person might. Standards for allegations of "unchastity" particularly for a woman, have also changed. Alleging that someone is not a virgin probably wouldn't be defamatory (80%+ of unmarried 20-year olds are not), whereas alleging that someone "has a different lover each night" might well be.

In the case of Red Hat Club, there was no strong "signal of fiction" that acted as a disclaimer. In fact, the "back story" was so true to life that people reasonably believed that the main story was similarly true.

I am not a lawyer but I have done "paralegal" work for company lawyers in my "day job."

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