Libel and the Aspiring Novelist

One of my fellow NAW students asked an established editor a couple of questions on libel t'other day, and I thought it would be nice to share the answers with the wider world.

It may well apply to some of us writers who may be thinking of writing fiction or some other form of writing that is based on ‘real life’. Its impossible to ignore these issues these days; and as they say, ignorance is no defense in the eyes of the law.

Q) What are the legal and contractual implications of writing a novel based on the experiences of an actual living person?

A) There is no doubt at all that were the book to be written and taken on for sale by an Agent/Publisher, that there would be immediate questions and concerns about legal issues. Trying to pre-empt when the book is not written is practically impossible because the devil is always in the detail - a phrase here, an implication there. My advice would be that (you) should certainly read Geoffrey Robertson’s book, Media Law but that you should also think long and hard about writing about a real person at all. It will be hard enough to find a publisher as an 'unknown' without adding to the problems with inevitable legal costs. I doubt any publisher would take it on even if you provided all sorts of indemnities, without consulting their own legal adviser. If you really feel you must write this book - you should get on with it - and then take legal advice. A lawyer can't properly advise without a Ms. If the book is really, really good , an Agent and then Publisher will be prepared to take a punt and get a libel reading. I can't think any disclaimer or agreement with (the subject) can anyway be valid without a finished text. But, it has to be your decision. If you feel strongly as a Writer that you must write this book and it is important to your development, then you should write it. Publishing and 'broadcasting' the content is a different matter. Novelists as well as biographers do get sued and I could quote chapter and verse. Any legal complication is very unwelcome and gets more expensive all the time!

Q) Suppose I were to take the subject of the story, the psychological 'tics' of the characters, the nature of their conflicts and the arc of events and so on, and transpose everything to different settings, etc, so that the form of the story (in a platonic sense) remained but the details were original to my imagination? Would that give me sufficient distance from the 'true' events to allow me to avoid issues of libel?

A) It is impossible to answer your question simply; I'm afraid. The trouble with libel is that cases are brought because people consider they have been libelled. It is THEIR perception which often counts. It is a little bit like bullying in the workplace. What is bullying for one person is simply banter for another. Disclaimers at the beginning of a novel 'the characters in this book are products of my imagination..' etc etc do not count in the courts. And never underestimate the requirement of some people to have their day in court even if they have been offered an out of court settlement. What you suggest would of course lower the risk of any action; but, there would still be a risk. On the face of it this seems very storm in teacup. The reality is a lot of time spent on a marginally profitable book and a very different attitude taken to the next novel . And certainly no royalty payouts!.. So, to sum up: of course you must write the book you want to write. Getting it published is a different issue.

Thanks to Nick for asking the questions and the Editor for allowing me to post the responses here.