Thursday, March 17, 2011

Can You Defame the Dead?

Libel is the act of communicating a false statement of fact about a person that damages their reputation.  Under U.S. libel law
Can You Defame the Dead?

Anthony and Caesar’s Body (A. Krausse)

, the dead cannot sue for libel.
However, when a defamation plaintiff dies while a case is pending, their estate* representative may continue the lawsuit.

Joseph Iseman, a former partner at Paul, Weiss, Rifkind & Garrison, once advised Peter Schwed, the editorial director of Simon & Schuster, that preparing an index for any nonfiction book was a dangerous activity if any of the characters were still alive.

In his autobiography, Turning the Pages: An Insider's Story of Simon & Schuster, Schwed explained Iseman's reasoning.  "Anybody who thinks he is likely to be in a book, but doesn’t intend actually to read it, is likely to scan the index to see if there are any references to him." 

Amazon's Look Inside, and Google Books (previously known as Google Book Search) made Iseman's advice to omit the names of living individuals from the index a relic of a pre-internet age. Whereas, in the 1990s, you could still minimize the chances of getting sued for libel by omitting an index to  your book, there's no hiding in today's digital world.

The evil that men do lives after them. So, air (or publish) their grievous faults, but be careful about unflattering statements and unsupportable accusations about the living - their friends, family and associates. Unlike the dead, they can punch back.

Here are some evergreen tips on how to minimize the risk of a successful libel claim:    

(a) The Bob Marley "Who the Cap Fits" defense. Libel requires falsity, so truth is an absolute defense;

(b) Use prominent disclaimers. Although they may not shield you from a successful lawsuit, they may deter one; 

(c) If thinly veiled fiction, disassociate the doppelgänger from their real-life counterpart by writing a composite character; 

(d) Depict but do not disparage; and 

(e) Wait for the real-life person to die. 

If (e) gives you an additional reason to outlive your literary prey, consider it my gift to you. He who laughs last laughs best.  And remember, revenge is best served cold at your publication party -- preferably with a Sauvignon Blanc, Riesling, or Gewurztraminer. 

*A handful of states, including Colorado and Georgia, have criminal libel statutes that allow the dead, i.e., their estates, to sue for libel.  In Colorado any statement "tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred contempt or ridicule,” can get you into hot water if writing about a private individual.  For more information about criminal libel, click here.


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