Sunday, February 03, 2019

Malice Actually

In a recent article for vox dot com, Constance Grady wrote that, "In book publishing, the onus for fact-checking is on the author. That creates problems."

Scandal ensued.

Compare the fact-checking problems there, with the "fact checking" issues discussed by legal bloggers
Alan L. FrielLinda A. GoldsteinAmy Ralph Mudge and Randal M. Shaheen  writing for the law firm Baker & Hostetler LLP  about Olivia de Havilland's unsuccessful complaint about a mini-series that allegedly deliberately portrayed Olivia de Havilland as the kind of person Olivia de Havilland despised and spent a professional life-time NOT being.

The problem with writing in America is that authors are legally responsible for what they write.

The problem with being written about in America is that libel laws are often trumped by the First Amendment, and would-be plaintiffs who are public figures have to be able to prove "actual malice" on the part of the author.

Those who sympathize with creators of "historical dramas", might argue that it is dramatically necessary to turn a real, living public figure into a scandal monger or whatever else advances the plot for the sake of telling the story succinctly and with as few characters as possible.

Those who have more European attitudes to respect for the feelings and reputations of historical and public figures --and historical accuracy-- might deplore authorial laziness and lack of creativity in resorting to character assassination, when they could have added a fictional villainess.

 The Kelly Warner legal blog has an eye-opener of an explanation of the United States.

Bookmark this, because different States have different statutes about libel and defamation, and Kelly Warner has links to every one of them.

Note also, not only are politicians, celebrities, authors, sports figures etc "public figures", but teachers are, too.

Kelly Warner also has a highly alarming and entertaining article explaining ACTUAL MALICE.

However, since authors also advertise, and as the Baker & Hostetler LLP lawyers point out, advertisers cannot hide behind creative license and freedom of expression if they stretch the truth when advertising.

Gonzago E. Mon, writing for Kelley Drye and Warren LLP discusses the "Dumpster Fyre of Advertising Issues";

The most important take-away for authors  from this cluster of issues may be that  social media postings --of a promotional nature-- are subject to advertising laws, so must be truthful.  And not malicious..

All the best,
Rowena Cherry

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