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The Writing Life
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by David Taylor
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Because nonfiction often deals with real people, the freelance writer needs to understand the restrictions placed by law upon the use of names of people in published texts, in print and on the Internet. How far can you go legally? Can you change the names and be safe? Public figures seem to be fair game, but what about government agencies and their employees?
Such questions touch upon one of the most complex issues that a journalist must face today. It's also an area where you can't afford to make mistakes. For example, it's true that public figures are treated differently; so are public officials. But the differences between the two can be fine.
Luckily there's a good guidebook for us: the "Briefing on Media Law" portion of The Associated Press Stylebook. And if you want to know what it says, you've got to go to the library or pay for it. You can order it online at the AP's web site. Accept no substitutes.
Here is a brief guide to libel and slander as I've come to understand them through cases I've been involved with as an editor (none of which we ever lost):
Libel, Slander and Defamation
Libel can be personal libel or trade libel, which is also known as "product disparagement." Product disparagement can include a product, service or entire company.
Libelous statements, whether against persons or products, are published statements that are false and damaging. Slander is the same as libel in most states, but in spoken rather than written form.
The terms "libel" and "slander" are often subsumed under the broader term "defamation." It is a tort (a wrongful act) to harm another's reputation by defaming them.
How do you know if you might defame someone or something in what you are about to publish? There are three tests which the defamatory statement must meet in order for a plaintiff to prevail in a suit against you and your publisher:
From this brief explanation, you can deduce that the best way to avoid a libel charge, or to defeat it, is to:
Public Official vs Public Figure
The same liberal rule applies to both categories: To prevail in a libel case against you, in addition to showing that your statement is untrue and caused significant harm, a public official or a public figure must also prove "malice" -- that you acted in reckless disregard to the facts known to you and with intent to harm.
Obviously, because of this stipulation, you enjoy considerable protection when it comes to public personages, since proving malice (intent to harm) places a heavy burden on the prosecution.
Who are these public people? The status of "public official" is relatively easy to determine from public records. The trick comes in determining who falls into the category of "public figure."
The courts have determined that there are two types of public figures:
The reasoning is that the press has a First Amendment duty to report on such newsworthy people, and therefore published statements warrant such protection.
Who is a private person? None of the above. Now you see why lawyers get the big bucks.
[NOTE: This article should not be considered a legal advice. If you have a concern about whether something in your writing is libelous, please consult a lawyer before publication.]
Excerpted from The Freelance Success Book.
This article may not be reprinted without the author's written permission.
David Taylor served as an executive editor for nine years at Rodale Press, where he worked on magazines such as Prevention, Men's Health, Runner's World and Scuba Diving. Prior to Rodale, he was a professor of English and journalism. His horror and dark suspense fiction has appeared in anthologies such as Masques, Pulphouse and Scare Care; and in magazines like Cemetery Dance, Sci-Fi Channel Magazine and Gorezone. He is the author and coauthor of five horror novels, as well as The Freelance Success Book.