Would This Be Considered Defamation?

Lolly · Sep 30, 2006

I just received the latest AW newsletter, and I have a question about defamation. I'm writing a fictional novel. As part of the novel, I'm going to mention a practice done by a group with which I totally disagree. Let me explain.

There is a sect of Christianity that advocates "domestic discipline." This is where a husband disciplines his wife if she steps outside of the boundaries that he sets. It starts with mild punishments like taking away privileges but can go all the way up to spanking. I heard about this on another forum and have seen the websites myself. These people are proud of their lifestyle and so it's pretty easy to document.

In my story, I was going to have a couple who practiced this, but it escalates into full-throttle physical abuse. Could the groups who advocate DD sue me or the publisher for defaming them? I mean, on their websites they say it's supposed to be a mutual decision. I'm worried because this was going to be a major element of my plot.

Cath · Sep 30, 2006

I don't know a great deal about the law regarding defamation, but I'd be very upset if we weren't allowed as writers, to highlight issues that we feel strongly about.

I would write the story first, then consult with someone who knows more to find out whether you might want to change anything to ensure you're not being defamatory.

Gwenzilla · Sep 30, 2006

I am not a lawyer, but I really doubt seriously that you could be liable for any kind of formal defamation or a lawsuit or anything of the kind unless you point to a specific religious sect by name. I think it's fine to call the sect something other than its actual name. I would also shy away from naming actual people or leaders of this sect.

icerose · Sep 30, 2006

If Dan Brown can do his book, I'm sure you would be just fine with yours.

Jaws · Sep 30, 2006

Lolly said:
Could the groups who advocate DD sue me or the publisher for defaming them? I mean, on their websites they say it's supposed to be a mutual decision. I'm worried because this was going to be a major element of my plot.

Regulars around here already know what my answer is:

It depends.

Remember, this is general commentary, not legal advice for any particular situation.

Can the groups or publisher sue? Yes. I think what you mean to ask is whether you could be found liable, not whether they could sue; people and organizations file lots of hopeless lawsuits. In a technical sense, what you describe could (at least in theory) be treated as either business disparagement or hate speech. I believe that there's an exceptionally strong defense available in either case... but I'm saying so in the abstract, without knowing what state (or even nation) this might be heard in, without knowing the actual doctrine in question, and without having seen the actual statement.
Does it matter if the groups/individuals engaging in this practice claim it's a mutual decision? No. Only in certain organized sporting events can one consent to a battery and thereby lose the right/ability to sue for that battery. Whether the behavior is sufficiently serious to be considered a civil or criminal violation of law depends upon the exact circumstances.
Does it matter that this is a major plot element? Maybe, but probably not. The variations are extremely intricate; the key is to avoid liability for hate speech in your jurisdiction (there's no problem with New York). Some ways that it might matter, in no particular order:
- The resolution of the plot seems to advocate or encourage discrimination on a religious basis
- The individuals depicted are too easily identified with real persons, even if not known to the author or intended
- The incidents depicted are too easily identified with other family members who have privacy or publicity interests
- The "religious" practice is also ethnically or racially identifiable (e.g., if the religious doctrine in question was strongly identified with—hypothetically speaking—Martian-Americans)

The key concern is whether the novel is little more than a roman à clef, easily identified with one (or more) "real" incidents. This is a very common mistake among inexperienced writers ("fictional novel" sort of implies that): Failure to extrapolate far enough from a real-world source of inspiration to create a truly fictional creation. Leaving aside the generally lower quality of such efforts (even by much more experienced writers), the legal issues become more central as the work approaches "reality."

One common misconception is that calling a statement "fiction" or an "opinion" automatically insulates it from defamation. Not true at all; characterization as fiction can be a mitigating factor, but it is never a complete defense, and an opinion is insulated only insofar as it is based on true factual grounds. An opinion can be defamatory if it necessarily implies or is necessarily based upon discernable untrue facts (for example, calling an individual a "misogynistic pedophile" implies some pretty disreputable facts).

Jamesaritchie · Sep 30, 2006

defamation

I wouldn't hesitate a second to write about it. When a writer can't write somethng like this, free speech is dead and buried.

Marlowe · Sep 30, 2006

Jamesaritchie said:
I wouldn't hesitate a second to write about it. When a writer can't write somethng like this, free speech is dead and buried.

Yes. A thousand times yes.

san_remo_ave · Sep 30, 2006

Hi Lolly,

I just happened to be reading about law & ethics in my Public Relations textbook and they talk about defamation.

defamation = speech defined as "the publication of material that would hold one up to hatred, ridicule, contempt or spite."

libel = "published defamation, by written or printed words"

I think you're concerned with "civil libel" and it must contain certain elements. 1) it must be published, 2) it must be damaging, 3) it must identify the injured party, 4) it must be negligent and 5) it must be defamatory. If a public figure is involved there is also an element that must involve malice.

Three primary defenses against libel charges:
#1 - it is the truth
#2 - it is priviledge (official proceedings, actions of gov't officials)
#3 - it is fair comment ("if communications involve matters of general public interest, expressing critial opinions is permissible")

In summary, I'm by no means a lawyer or professional or qualfied in any regard to give advise. But looking it up in my textbook, it sounds like if what you're writing about is most importantly factual and varifiable, you're OK. Ain't the truth grand?

Good luck!

(Ref: Lattimore, Dan. Public Relations: The Profession and The Practice, 2nd edition.)

Weird side note: just realized the copyright noted is 2004 and 2007. How do they copyright forward for a book I'm holding in my hand now?? :Shrug:

Shadow_Ferret · Sep 30, 2006

Domestic discipline, huh? Where do I sign up?

kristie911 · Sep 30, 2006

Shadow_Ferret said:
Domestic discipline, huh? Where do I sign up?

You're just hoping you'll get spanked, aren't you?

TwentyFour · Sep 30, 2006

Wouldn't Law and Order writers be sued every week if straying slightly from real life to look like fiction for entertainment was so illegal?

kristie911 · Sep 30, 2006

I can't imagine it would be a problem. I can't tell you how many books I've read that ran down a specific religion...it's not really much different. My current WIP deals with the people who protest at soldiers funerals. I changed the name of their church and made up the leader but anyone who reads it will know who it's really based on. It never occured to me it might be defamation. That's for my publisher to worry about...if I ever find one!

Good Luck!!

Jaws · Oct 1, 2006

Two points:

(1) Lattimore's textbook is notoriously misleading. Those of us who deal with published writings gnash our teeth every time a client says "My PR coursework taught me that…", and it's even worse when Lattimore is involved. The actual elements of libel in US lawwith a few flavor variations from state to state, but largely in what evidence allows the conclusion and not in the elements of the offense:

A false statement of fact, or of opinion necessarily founded upon a false statement of fact,
That tends to harm the reputation of a person identifiable in or from the statement,
Published to another
In a permanent/reproducible form

One side note: the "actual malice" standard for defamation of a public figure does not require any "malice" as one would ordinarily use that term; it instead means "made with reckless disregard for the truth without effort reasonable under the circumstances to confirm the factual elements".

(2) The 2007 copyright date is from a publishing-industry convention. Many publishers begin assigning copyrights from year (n+1) for books first published in September and thereafter; by the time December rolls around, virtually everyone is putting "next year's copyright" in their books. This is an artifact of the 1909 Act, the 90-day-timely registration requirement, and a variety of other factors that make no sense if one is outside of the industry (and not much more if one is inside the industry). Ignore it; the stated copyright date no longer has any legal significance.

maestrowork · Oct 1, 2006

Someone mentioned Dan Brown. I mean if he could write about Agnus Dei and the Vaticans and get away with it, I think it's safe to assume that you can fictionalize anything.

Saundra Julian · Oct 1, 2006

The Godfather defamed the Mafia.
Anyone get sued over that movie?

TwentyFour · Oct 1, 2006

I dont think people sue over this stuff unless they really have it out for someone. I don't see many lawyers taking cases like this for the fact that they want to be paid. If someone is going to go through all the trouble of a lawsuit, a lawyer will want payment usually for phone fees, court fees, filing fees, and if they got the money to pay for all that, then they likely do not need the money to prove something little like this guy made up a character about me or my church.

With Saundras mention, I'd like to add to that Titanic, where they show a man on the ship shooting at the passengers. In life, this man helped get people off the Titanic, gave up his own seat on the lifeboat for others, and died in the waters. Also add An American Haunting, where the father (who was real and named in the movie by actual name) was shown molesting his daughter Betsy. In real life, he did not do that and his family has not sued anyone over this outrageous lie.

Oddsocks · Oct 1, 2006

You could consider desguising it? That may not be something you want to do if it hides your point, but you could have a similar situation without mention of the name of the practice, groups involved, etc?

Branwyn · Oct 1, 2006

Isn't that what the little blurb stating, this is a work of fiction. Names, characters, places, and incidences either are the product of the author's imagination or are used fictitiously. Any resemblance to actual events or locales or persons, living or dead, is entirely coincidental.

eldragon · Oct 1, 2006

With this DD, who disiplines the man of the house?

LeeFlower · Oct 1, 2006

A word of caution unrelated to legal issues: be sure you don't wander into "chick tract" territory. He writes tracts about how tabletop roleplaying games (among other things) are evil, and will lead teens to satanism and suicide. They're certainly entertaining, but I doubt that's what he was going for.

So yeah, use this DD practice if you want, but tell a story, don't Make A Point.

Lolly · Oct 2, 2006

Good point, Lee. I once tried to read a novel that was a thinly disguised diatribes about an issue, and to be honest, I didn't even finish it. The characters were like cardboard and the story boring. So an issue should never get in the way of a good story.

Regarding my story, the DD stuff is only part of the plot. In fact, the story chronicles the lives of two women friends, one in this abusive relationship and the other in a perfectly normal one. So I guess I worded it incorrectly in my OP. The abuse is important for understanding one woman's personality and subsequent actions, but it's certainly not the only part of the plot. And I don't intend to linger on any lengthy description, either. Reading those websites nearly made me throw up, so I have no desire to repeat every graphic detail.

As for the group that advocates DD, I don't know anybody in it so I can't make a fictional character based on any of them. And the abusing husband and his wife both start out wanting to practice DD, just like the group advocates. After a while, though, the power goes to the husband's head and he escalates it into full-scale abuse. So the DD is more of a plot device to chart the disentegration of a marriage rather than an indictment of the group that practices it. I just heard about it somewhere else and thought it was interesting.

aadams73 · Oct 2, 2006

In a similar vein, Natalie R. Collins writes very frankly about the seedy side of the mormon church and society. It's made her very unpopular with certain members of her community, but they don't have a legal leg to stand on.

http://www.nataliercollins.com/index.php

Would This Be Considered Defamation?

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