Written by Alyce Evans and Principal, Jennifer Tutty
Reality and the world around us are a powerful source of inspiration.
Fictional characters are often crafted from friends, partners or strangers on the train. Events from history or our own experiences are given new life on the page. Whether you’re writing fiction, creative non-fiction, biographies or journalism, reality can provide compelling material for your work.
However, proceed with caution. While turning to reality may open new creative pathways, it can also open the door to defamation claims.
To assist writers navigating this tricky terrain, we explain how writers can avoid defamation claims when sourcing inspiration from reality.
*note – this article does not apply to the WA and the NT.
What is defamation?
Defamation occurs when defamatory matter referring to another person is published and the defamatory publication caused or is likely to cause serious harm to that person’s reputation.
A matter will be defamatory when the meaning it conveys (directly, indirectly or by innuendo) has a tendency to lower that person (and their reputation) in the minds of ordinary members of the community.
Because of this, many people wonder how the media can publish crime reports without being sued for defamation. Effectively, the media carefully construct their articles or announcements so that they are stating facts, without providing any opinions or embellishment. There is a very fine line between the two.
Using adjectives, descriptions or even sarcasm about a person or topic may be enough to infer a defamatory meaning, even if the actual statement is not directly defamatory.
Referring to another person
A common misconception is that you need to expressly refer to a person in order to defame them. This is simply not true. The test is whether an ordinary, reasonable person would be able to identify the person who is being referred to.
Have you based your character on a real person?
If yes, be careful not to defame that person in your writing. Make sure that the real person behind the character is not identifiable in your work. This may be particularly difficult if you are writing a biography or autobiography, in which case, it’s advisable to seek pre-publication legal clearance to cross-check you haven’t defamed anyone.
Q: If I give my character a different name, am I safe from a defamation claim?
Changing your character’s name (so that you don’t specifically identify the person they are based on) is sometimes not enough. A court will consider whether people who know or know of the person would be able to reasonably identify them as your character. If the person is identifiable despite the character having a different name, you could find yourself facing a defamation claim.
Q: What if I give clues after publication about who the character is based on, but it’s not clear in the novel?
Let’s break down this hypothetical.
You’ve written a novel with a character based on a real person. If anyone knew the identity of the person, it would be defamatory. However, you’ve been careful to ensure that their identity isn’t clear in the novel.
The novel gets published and all is well… However, in a later press conference, you drop a few hints about who this character is based on. Although the person’s identity wasn’t clear in the book (which contained the defamatory statements), these later comments enable others to connect the dots and identify them. That’s fine, right?
Wrong.
Separating the identifying information from the defamatory content itself won’t provide a loophole out of a defamation claim. If the two can be linked, they can be considered together.
Q: What if the person I’m writing about is no longer alive?
Historical fiction writers get a free ride here – under Australian law, you cannot defame people who are deceased.
Published
Defamation arises at the time and place of publication. This occurs when the defamatory matter is communicated to a third person.
When the defamatory matter is communicated (‘published’), it’s irrelevant whether or not you had an intention to defame someone or whether you knew that the matter was defamatory.
A court will look at whether the publisher had an intention to publish the material.
Additionally, each and every publication of the defamatory material constitutes a new and separate cause of action.
Online publishing
If defamatory matter is published online, and is accessible in different states or overseas, there may be several jurisdictions where defamation occurs. With each jurisdiction having its own version of the law, things can get complicated. Therefore, if incorporating reality into your work, it is prudent to consult a defamation or media lawyer prior to publishing.
‘Serious harm’ threshold
In 2021, Victoria, New South Wales, South Australia and Tasmania introduced a new ‘serious harm’ threshold for all defamation claims. This requires individuals claiming defamation to prove that the defamatory publication caused (or is likely to cause) serious harm to their reputation.
To learn more about this new test, check out our blog: ‘A Princely Reminder: Recent Developments to Australian Defamation Law.‘
Defences
So, your book has been published and someone is suing you and your publisher for defamation. What now? Under the Defamation Act 2005 (Vic), there are a number of defences available, which may apply in different circumstances. These include:
1. Justification
The defendant (person who the defamation claim is brought against) proves that the defamatory statements are ‘substantially true’.
2. Absolute Privilege
The defendant proves that absolute privilege applies.
One example of this is where the material has been published in the course of proceedings before a parliamentary body or court.
3. Public Documents
The defamatory material, which the defendant referred to, was published in a public document or in a fair summary of a public document.
A fair summary of a public document might be a report or paper published by the court or government to inform the public. To be ‘fair’, it cannot be biased or inaccurate.
4. Honest Opinion
This one is tricky as there is a fine line between expressing your opinion and expressing something as a fact. If the defendant proves that the defamatory material was an expression of their honest opinion (and not a statement of fact), which related to a matter of public interest and was based on ‘proper material’, this may be a defence.
‘Proper material’ is material that is either ‘substantially true’, covered by ‘public documents’ or a ‘fair report of proceedings’.
5. Triviality
The defendant proves that the person allegedly defamed was unlikely to suffer any harm by the publication.
If this defence is raised, the court will consider the surrounding circumstances.
6. Consent of the person who is identified by the statements
Although this is not technically a defence, the best way to prevent a defamation claim being brought against you is to have the permission of that person to publish the material.
Top Tip – Avoiding a defamation claim
The best way to avoid defamation is simple. Ask for permission before publishing.
If you have based a character in your novel on a real person, or events in your plot on real situations, speak to the person or people involved. Allow them to read your work before it is published.
Finally, request their express consent that they won’t bring any claims for defamation regarding that content.
Ensure that this agreement is in writing, refers specifically to the relevant statements or sections of your work, and is signed and dated.
Epilogue
Reality is a valuable and vital source of inspiration for many writers. It can be used to create memorable characters and plot lines, share new perspectives and lead to important discussions about our society. However, use it wisely. When in doubt, ask permission from the source of that inspiration.
Further Information
If you have any legal questions relating to writing, intellectual property or defamation, please contact us through our online form or at hello@studiolegal.com.au.
To learn more about navigating the legal side of the publishing industry, check out our blog: ‘How to Understand Your Book Publishing Contract: Top Tips for Writers‘.
Published 6 December 2022.
Written by Alyce Evans and Principal, Jennifer Tutty
Photo by Green Chameleon on Unsplash.
DISCLAIMER
The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.