Recent cases in Australia are good examples that demonstrate defamation law is often on the side of the plaintiff and the damages can get VERY expensive.
Although defamation might not be the first thing that comes to mind when you’re writing a post or creating a video, according to Griffith University Media Law professor Mark Pearson, it is the ‘most common area of litigation for online creatives.
The law of defamation (a.k.a. slander or libel) deals with the subject of damaged reputation, which, if brought before the courts, can be very costly for the author (of the text or video) and any other party involved in the publication process; through shared liability.
Defamation can be expressed in several forms of communication and happens when it is conveyed to at least one person; other than the person (or entity) in question.
Defamation is one of the hardest laws to navigate because it is not as precise as other laws and requires nuanced knowledge and skill set, to balance free expression (and public interest) with the reputation of others.
This article focuses on what creatives should be cognisant of during each stage of the publication process to either avoid or navigate their legal exposure to defamation action.
Mindful practice
To start, the best way for you to navigate or avoid defamation action is to develop a mindful practice. Referring to one’s ability to pause and ‘reflect in action’, mindful practice is the development of pragmatic habits and knowledge of legal pitfalls; particularly when the created content might negatively impact what ‘people think of the plaintiff’.
Remembering that offensive, upsetting, or embarrassing content is not always defamatory, and you need to be aware of the extent of free expression (and the definition of public interest) as well as the legal defences — discussed in the next paragraph — available to you, should you decide to ‘push the envelope’.
One of the ways to practice mindfulness is by following websites or groups that provide ongoing reporting in the defamation and free expression space.
Further, if you have any employees or contractors, it might pay to provide or offer them some basic training (particularly for research assistants), because everyone involved in the creation and publication of the content is potentially liable; including the editor and book publisher.
Overall, mindful practice gives authors confidence and peace of mind when publishing.
Informed research
In general, most creatives begin their content creation with information gathering — the research phase. And while it is important to seek out credible sources, it is essential that you fact-check all information diligently so as to avoid (accidentally) contributing to the spreading of false and potentially defamatory information.
This process is important because it provides you with provable facts and tangible documentation for the (substantial and contextual) truth defence — a legal term allowing the author to defend themselves in court.
Other defences, such as honest opinion (and others), are also available including several requirements — such as a Concerns Notice (depending on which country you live in) — that the plaintiff needs to meet before they can bring action against the author.
In other cases, you might have access to a public interest defence — which requires the author to “prove that the material concerns a matter of public interest, and the publisher reasonably believed that the publication of the material was also in the public interest.”
It is in your best interest to familiarise yourself with your local legal rights and obligations as early as the research phase in order to manage your exposure to defamation (and other) action.
Conscious writing
Once the research phase is completed, the content creation process begins with its own defamation pitfalls creators need to be aware of.
According to Pearson, defamation can be conveyed through written, verbal (spoken or sound), visual (images) communication including body language (gestures), and interpreted through its perceived meaning (or imputations — legally speaking) that does not need to be explicit.
Implicit meaning which can be conveyed by asking the reader to ‘read between the lines’ can be just as defamatory.
However, you can still write about something while masking the person involved to the point of non-identification, which was the case for a reporter Melissa Ketchell, when she wrote an important story about a court case (that had a suppression order) while successfully protecting the identity of the children involved.
Also, just because the author thinks that a person they are describing is unidentifiable, they might accidentally describe a real person by masking the original person — their motives or intentions are irrelevant in the eyes of the law.
Even when writing about fictional characters, in view of the Artemus Jones’ case (1910), where a real person by the same name sued the author and won because he was able to prove that other people identified him in that character.
To sum up, it is important for creators to be mindful of names that may belong to people (or entities) that might not be very famous but have some standing in the community, and to be mindful of using narrow descriptors, such as a lawyer who drives a red Ferrari and lives in such and such city (because there could be two of them in that city), that can unintentionally identify a person the author never intended to portray in their writing.
Global implications
While it is important to understand the basics of local defamation law, creators often make content for a worldwide audience, each with its own unique set of laws respective to the country or jurisdiction.
In 2002 the High Court of Australia ruled that the plaintiff can sue the author from the place where the content was downloaded and read (Gutnick’s case, 2002).
This means that in the case of ebooks and audiobooks local laws would apply — not the laws where the author originally published the book. Keeping in mind that according to Pearson, over half of all defamation cases in recent years originate from online content, it is impossible to become knowledgeable in the particulars of defamation law in each country and jurisdiction (sometimes referred to as libel or slander).
So it might be wise to invest in professional indemnity insurance and (when in doubt) consult a lawyer, considering that damages in defamation cases often run into hundreds of thousands of dollars. This can be done independently or by joining professional bodies who can offer further professional support in addition to legal protection.
Also, It is important to note that there is usually a timeframe (depending on the country) within which the plaintiff is allowed to bring action — in Australia it’s one year from publication — or the first time it was uploaded, under the new ‘single publication’ rule.
Finally, in light of global legal implications, it is recommended that authors check local laws before travelling, in case they have published material that holds relevance to that location, for which they might have to face court and potential jail sentence.
In the end, there are many more potential legal pitfalls, particularly in the online space that creators need to familiarise themselves with in order to write confidently and avoid legal exposure.
To conclude, authors must strive to find a well-thought-out balance between freedom of expression and protection of reputation in a way that does not impede healthy debate and public interest.
It is important to note that small-time or one-off authors are just as liable as well-known professional authors or large publishing houses; we are all publishers and thus equal in the eyes of the defamation law.
Although this article focuses primarily on printed books, ebooks, and audiobooks, creators are advised to apply similar principles to their general online communication. Considering that authors often share their books prior to publishing (for review or beta reading purposes), and in some cases, release the first chapter or chapters on social media for feedback and marketing purposes, it is important that all possible defamation issues are dealt with as early as the research phase to protect themselves from any defamation action.
After all, authors that are equipped with legal knowledge and tools, who also incorporate mindful practice in their daily work, are in the best position to write confidently in a way that benefits society at large.
Disclaimer: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal or other professional advice concerning any particular matters you or your organisation may have.