Calling Jaws - Author and Publisher: Privileged Communication?

John, I'm not qualified to answer this but I'm going to edit your subject line to call Jaws, who is. That will also enable me to nuke your duplicate post. If I do so now, it might take this one with it since they have the same title.

JohnJStephens said:

Does anyone know if author/publisher exchanges are considered privileged communications, in the legal sense?

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Not a chance. Not even a whiff of privilege in there.

I know that my ms is going to push the envelope so far as defamation is concerned, and expect that (assuming the ms is ever accepted) the publisher's attorneys will call the shots here, and demand certain rewrites. And this is OK because no-one wants to be sued.
But what about at the time of initial submission? Could an author be sued for libel simply for showing a ms to a publisher?

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Yes, an author could be sued. Defamation law is based on "publishing" a defamatory statement to a third person—but "publish" in this context means merely communicating it. Although most defamation suits do involve relatively widespread communication through what laypeople think of as "published," that's simply not what the term means legally.
I'll pause while y'all reflect on the irony of an entire industry that seeks to have a positive image naming itself after what was, during the 18th century and earlier, a criminal act—because until 1733 they were merely called "printers."
The size of the audience goes to the level of harm wrought, and hence the potential damages. The manner of publishing the libel (or slander) will certainly affect the size of the audience... but there is no certainty; an evangelical at a revival meeting might well have a far larger audience than, say, a sport historian whose article comes out in one of the three leading academic journals in that field.

JohnJStephens said:

Does anyone know if author/publisher exchanges are considered privileged communications, in the legal sense?

I know that my ms is going to push the envelope so far as defamation is concerned, and expect that (assuming the ms is ever accepted) the publisher's attorneys will call the shots here, and demand certain rewrites. And this is OK because no-one wants to be sued.

But what about at the time of initial submission? Could an author be sued for libel simply for showing a ms to a publisher?

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While there is no legal reason for a publisher not to talk, one that does is soon going to find itself in hot water with a big bunch of writers.

Now, I've heard of many cases where someone sued because of a published book, and I've heard of people suing in order to stop a book from being published, but I've never once heard of anyone being successfully sued for libel over something in an unpublished manuscript.

And no publisher or lawyer is going to call the person you're writing about and tell them what you've written. That would be very bad for business, and they wouldn't have any other writers sending them controversial manuscripts. Should some low level nabob at the publisher leak the manuscript, the publisher might then be sued in order to stop publication. This has happened occasionally, but I've never seen it succeed.

Libel is easy to prove in some countries, but in the US, libel is extremely difficult to prove. If you have reason to believe what you write is true, libel isn't likely to happen. If there's no malice, libel isn't likely to prevail. If the person can't prove harm, libel doesn't matter. Libel suits are fairly common, successful ones are pretty darned rare, simply because publishers do have lawyers, and the burden of proof is very high. If the person is a public figure, you can say a great deal. If the information comes from authoritative sources, such as trial transcripts, you can write it.

And as I say, in all my years, I've never, ever heard of a libel suit won over a manuscript. Despite "publishing" meaning putting something before the public, an editor is generally not considered the public. Until and unless that manuscript is published, you're usually safe.

Some publishers do try to sneak a clause into your contract saying that if anyone sues, you're the guilty party and not them. Bad clause, and not one any writer should allow in. No good agent allows such a clause.

Worry about libel should never stop a writer from writing a manuscript.

This might be slightly off topic, but I have seen one case where they managed to keep things privileged. Take the following hypothetical situation :

Imagine a company whose product is suspected of killing people. If the boss asks the engineers to prepare a report on how safe the product is, then that report could possibly be produced in a court case. It's a problem. The boss wants to be able to get the report on how many people they have killed, without the risk of their confessions of guilt being used against them in court.

The solution is simple: The boss asks the lawyer to ask the engineers for the report, and the engineers pass the report back to the lawyer, who then passes it to the boss.

So by inserting a lawyer in the middle of every communication, then everything was entirely privileged - even if the lawyer didn't make an effort to read it.

From memory, the situation deteriorated to the point were the engineers would simply email each other with 'Lawyer' as the 'To' recipient, and the real recipient as a 'CC'.

They were assured that this would make everything privileged - even the 'communications' that the lawyer wasn't really interested in.

It is worth thinking, however, that this advice was given to them by the same person who was now sending out a bill for every email that they received - a great system for the lawyer who didn't even need to read any of the emails!

I can't remember how successful this was - I seem to recall, though, that the method of simply inviting the company lawyer to any meeting that you wanted to keep privileged was overturned in one case. This company also sent a whole pile of reports to their lawyer, and claimed that it now made these reports privileged. (Since the communications weren't to & from the lawyer - they just happened to be in the same room, or get the document later, it failed. I believe the judge used the phrase along the lines of "You can't just wave a lawyer over a document and expect it to magically change into a privileged communication". )

Keep in mind that I'm relying on my failing memory on cases that I had no direct involvement with - and these were cases in my home country of Australia...

And, no, I am not a lawyer.
(And I exaggerated when I used the term 'killed'. The true case was much more mundane, and so was a much more boring example)
Mac

I ask that this thread be cut off here. The question is not one that can be discussed—even at a relatively abstract level—outside of attorney-client privilege, and any such discussion is going to be taken by somebody as gospel when it doesn't apply to their particular situation. Further, there is information in the follow-up question that is seriously harmful to the interests of the individual who asked the question.

John, I'm going to take Jaws' advice and close the thread. I'm not sure if you'll still be allowed to edit your follow-up question (which appears advisable if I read between Jaws' lines correctly) once I do.

If you would like to, but can't, send me a PM with how you'd like it edited and I'll do it later.