Thursday, March 17, 2011

Novel Advice About Libel in the Internet Age

Dead Men Make Lousy Libel Plaintiffs
As book distribution transitions to from brick and mortar bookstores to the clouds, not only are traditional business models being questioned, but so is traditional legal advice dispensed by publishing attorneys.  

Joseph Iseman, a former partner at Paul, Weiss, Wharton, Rifkind & Garrison, once advised Peter Schwed, former 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 that “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.”

Whereas, in the early 1990s, you could still minimize the chances of getting sued for libel by omitting an index, today, with Amazon and Google Books, there is no hiding in plain sight.  Everything is discoverable.  If you wish  to vilify someone today, the best advice is pick someone dead.  Dead men tell no tales. And, in the United States, the general rule* is only the living can sue for libel.

*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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