"Publish And Be Damned" (Of Sensational Defamation)

Dishing the dirt does not always pay. Those who do not know History are doomed to repeat it.

"Publish and be damned," is believed to have been the first Duke of Wellington's response to literary blackmail. He was offered the opportunity to pay heftily to have a chapter about his extra-marital sexual exploits omitted from a tell-all series.

Brian Cathcart tells the scurrilous tale.
https://www.independent.co.uk/voices/rear-window-when-wellington-said-publish-and-be-damned-the-field-marshal-and-the-scarlet-woman-1430412.html

Modern day legal bloggers, Patrick Considine,  Peter Bartlett, and Dean Levitan writing for Minter Ellison reflect on the current state of sensational defamation and suggest four lessons for publishers (media companies), following a major lawsuit which resulted in the largest defamation payout to a single person in Australian history.

See here:
https://www.minterellison.com/articles/four-lessons-for-media-companies-after-major-defamation-payout

So much for blackmail, and scurrilous scandal that may or may not be approximately accurate, at least as regards His Grace. It boggles the mind why writers of fiction would both "date" their work and expose themselves to the risk of a lawsuit by mentioning a living person, even a celebrity (known to have fewer rights in America) in an unflattering context.

Ron Charles, writing for The Washington Post reports on one such instance in particular, and several recent instances in general.
https://www.washingtonpost.com/entertainment/books/alan-dershowitz-claims-the-good-wife-defamed-him-the-implications-for-fiction-writers-are-very-real/2020/08/05/703e7106-d699-11ea-aff6-220dd3a14741_story.html

Ron's article is a jolly good read, with a nod and a wink to the Odyssey and to Shakespeare's Historical Plays, and also to Walt Disney's famous water fowl, an actor or two, and current and former politicians.

Talking of Hollywood, legal blogger Toni Oncidi for Proskauer Rose LLP notes that publishing Hollywood actors' full birth dates is perfectly acceptable.
https://calemploymentlawupdate.proskauer.com/2020/07/dark-day-for-hollywood-law-prohibiting-online-publication-of-actors-ages-is-struck-down/#page=1

In these days of rampant identity theft, it seems wrong to this writer that birthdays can be exploited against the wishes of the celebrity... but no doubt it's good for LifeLock. For those not being exploited and exposed by IMBD and its like, many of those "person-locator sites" are required by law to remove information upon request, but they don't make it easy to find out how.

Try reading all the way through Terms Of Use or Terms Of Service, or Contact Us, or Privacy Policy, and legitimately scurrilous sites will have an explanation of users' opt out rights.

Be watchful, also, about the information you provide for "two factor id" on sites such as Twitter.

According to legal blogger Jenny L. Colgate, writing for Rothwell Figg's Privacy Zone blog, Twitter has been exploiting that supposedly super private data and sharing it with advertisers.
https://www.theprivacylaw.com/2020/08/time-to-double-check-your-corporate-practices-twitters-use-of-personal-information-gathered-for-security-e-g-two-factor-id-fo

All the best,
Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/ 

PS. Apologies for the late "Publish". Thunderstorms, power cuts, loss of internet is the reason.

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."

https://www.vox.com/culture/2019/1/15/18182634/jill-abramson-merchants-of-truth-fact-checking-controversy

Scandal ensued.

Compare the fact-checking problems there, with the "fact checking" issues discussed by legal bloggers
Alan L. Friel,  Linda A. Goldstein,  Amy 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.

https://www.lexology.com/library/detail.aspx?g=610d48da-8b16-47e9-9b91-0043c40d182a&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2019-01-31&utm_term=

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  DEFAMATION.in the United States.

http://kellywarnerlaw.com/us-defamation-laws/

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.

http://kellywarnerlaw.com/what-is-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";

https://www.lexology.com/library/detail.aspx?g=bb3ce673-3a21-4011-967b-4047176efbbf

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