Defamation Discussion - How to Protect Yourself when Writing about Other People

Jul 14, 2020
 

Brenden Maskey, the Managing Director of CooperMaskey Consulting has graciously given his time to discuss defamation and how we can protect ourselves when writing about other people.

Brenden has been a practicing lawyer and trade mark attorney. He is supportive of the arts and literary industries, providing advice and assistance to galleries and authors to help protect and commercialise their works. Brenden is not currently practicing law, but continues to support the advancement and commercialisation of intellectual property. 

Today Brenden will define defamation and suggest ways that you can protect yourself during your writing process.

*** Please note that we are not giving legal advice, simply defining terms and having a discussion. Always seek independent legal advice. This information is based on Australian definitions and law.

 

Definition of Defamation

According to ArtsLaw (Australia),

"Defamation is a communication from one person to at least one other that harms the reputation of an identifiable third person, where the communicator (the publisher) has no legal defence. The law of defamation aims to balance the right of free speech with protecting a person’s reputation against harm. While the news media tends to be the main target for defamation actions, people have also sued over poems, novels, cartoons, paintings, photographs, artistic criticisms, songs and satire. Threats of defamation actions are often used to stifle criticism or to settle other grievances such as invasion of privacy." (Arts/Law Information Sheet) https://www.artslaw.com.au/article/the-new-uniform-defamation-laws/

 

In other words, if you write something about someone, share it (to a third party) and that injures their reputation or causes damage in any way, then you are being defamatory and have the potential to be sued.

 

If you are writing a non-fiction, fiction, an article or even sharing information on social media (including retweets), you have to be very careful what you say about others and even what people can read between the lines. 

 

You can potentially be sued for defamation if you:

  1. Use words to ruin a person's reputation or they have suffered as a result of your words whether intentional or unintentional
  2. Communicate defamatory information to a third party (share it with others)
  3. Identify someone by name or they can be identified (even in a work of fiction) in a defamatory way.

 

What about works of fiction?

Yes, you can be sued if someone feels you have identified them in your story either directly or indirectly and it has ruined their reputation or caused them injury. (So consider names carefully!)

Even if you change names and put a disclaimer at the beginning of the book that this is a work of fiction, if a person can prove that you have written about them, describing someone of similar character, in a similar place to where they live, or drive a similar car, or have similar experiences, then they could potentially sue you if they have been injured as a result of the characterisation in your story.

 

Can you Defame the Dead?

Generally "No" because it will be hard for them to argue loss of reputation, however, an estate may bring an action to court on behalf of a person who has died. (Note, Tasmanian laws are unclear in this area).

 

Can large companies sue you for defamation?

Generally, "No" unless they are a not-for-profit organisation, or employ less than 10 people. However, an individual in an organisation can sue.  It's important to note that large companies do have the resources to find a way to bring an action against you and may use the argument of misleading or deceptive conduct if they feel their brand has been tarnished in some way.

 

 

This is what it may feel like when trying to figure out whether you should write your story or not (especially if it's challenging or topical). I know I certainly do. Litigation scares people and many a great story hasn't been written as a result.  

 

How does anything ever get written then?

Truth is a defence! But you must be able to prove your truth in what the court deems to be solid evidence. That is, it must be first-hand evidence and not from second-hand sources (which are things told to you).

For example, the stories my father told me are second-hand knowledge and unless I have facts to substantiate his claims over alleged corruption by the local council, then it may be difficult to defend myself from legal action.

I was going to use Newspaper clippings which backed his claims because they have already been out in the Public Domain but they are written by a third party and have subjective views. So it can be tricky.

If you state facts and have evidence of those facts, then it shouldn't be a problem (but always seek advice because every story and case is different).

 

Speak Your Truth - Write Your Truth (Wisely)

"Every good piece of work has some sort of controversy otherwise it wouldn't be worth reading." (Brenden Maskey)

 

How Do I Write My Story Without Being Defamatory

  • Ask yourself WHY you are writing this? Is it for revenge? If you write with malice, no defence can help you
  • Throughout your writing process, continually question, "Does this need to be in the story?" Draft 1 should be more of a free writing experience to get the story down, but in Draft 2 consider what is vital to the story
  • Be aware of what you write, how you say it and the language you use in order to protect yourself and others
  • In my Wobbly Woman Memoirs, I wrote a lot of personal stories involving other people and there were instances when I deleted stories because I realised they weren't my stories to tell. So, I changed the way I told the story.
  • Be conscious of coming from a place of empathy and understanding (even when writing about people who've hurt you). You can still get facts down or write your truth but when you come from a higher place (without revenge or malice) your readers will appreciate it and you'll less likely be sued
  • Ultimately, there are just some stories that have to be told and it's up to you to make the decision, weigh up the risk (after legal advice) and be prepared for the consequences. (There are some stories in my Wobbly Woman book that I know are potentially defamatory but I believe in myself and in telling my truth. I'm prepared to fight for my truth! But that's my own opinion and I don't recommend you do as I do. Everyone has a different journey and stress threshold)

 

Brenden recommends a useful resource by Steven Price (a New Zealand barrister) who created a 12-Point Checklist to Avoid Defamation based on Tiers or levels of proof. While the article was written a number of years ago, it still has relevance today.

You can check out the article here...

Brenden suggests that there are ways of articulating work into what you do know as a fact and what you don't know. If you have first hand knowledge of something, say it. If you know someone was the subject of an investigation, say it like that.

Tiers or Levels of Proof

a) A statement such as "Mr X was corrupt" requires a high level of argument to prove that statement is true in a court of law.

b) If you pose a question, "Is it possible that Mr X could be corrupt?" or if you use the words, "Mr X is alleged to have been involved in corruption, it reduces the level of truth you have to prove in court. 

These tiers or levels of HOW you say something can minimise your risk.

When writing, don't worry about defamation. Just write your best story otherwise you may never finish it. When you have finished your manuscript, go through it with a highlighter and edit it from the point of view of potential defamation. 

Do your research and find a literary lawyer or contact Writing Organisations or legal centres for creatives, such as The Arts/Law Society in Australia. They offer advice and assistance and may even offer pro-bono services where lawyers could check your work for free.

 

The Process for Writing & Publishing (a Potentially Defamatory) Story

  • Write your story first. Write your truth. Don't self-censor
  • Write without being defensive otherwise it will be unreadable
  • Don't ask for other versions of "the story" until you have your version down first
  • Give it to a professional editor for editing; they can be your first port of call regarding what could obviously be defamatory
  • Traditional Publishers have their own checks and balances
  • If you are self-publishing, always seek legal advice and give your manuscript to a literary lawyer if you are unsure

 

What happens if I get sued?

  • You will be issued with a Notice claiming you have made defamatory statements or that your work is defamatory.
  • If you don't believe that is true, so be it - you can argue it.
  • The first court action will be an injunction to stop the publication or further publications.
  • You may or may not be sued for damages.

 

Overall, don't be afraid to write and share your story. Arm yourself with the knowledge you need and get legal advice because every situation is different and can be complicated relating to the law.

While the idea of defamation sounds daunting, it shouldn't stop you from writing your story. We need your truths! Do your research and everything you can to protect yourself in order to get your story out there. Exciting Times!

 

A big thank you to Brenden Maskey who offered his services in the interests of helping writers get their stories out there. 

Disclaimer: This is not legal advice, and should not be relied upon as legal advice or counsel. Each circumstance is different requiring independent, timely and informed advice specifically related to your works. Please seek legal advice for more information about defamation, privacy or matters relating to your work.

 

References

The Arts/Law Society Australia https://www.artslaw.com.au/

Article by Steven Price - How to Avoid Defamation https://inforrm.org/2013/11/26/how-to-avoid-defamation-steven-price/

Article by Milly Patterson - Defamation in Depth - A Study into the largest defamation payout in Australia https://millypatterson1.wordpress.com/2020/05/03/defamation-in-depth-a-study-into-the-largest-defamation-payout-in-australia/

 

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