How to Avoid Legal Pitfalls for Writers and Authors
Part 1: Defamation — slander — libel
The recent Depp v Herd case is a good example that demonstrates 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 book, according to Griffith University Media Law professor Mark Pearson, it is the ‘most common area of litigation for writers’, both fiction and non-fiction.
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 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.
It 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 writers and authors 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 writing in a way that 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.
