Publishing and Defamation – A Publishing Lawyer’s Guide

Authors and publishers need to avoid claims that a publication is defamatory. If a book is defamatory, it may lead to legal action being taken against the author and the publisher. A defamatory book, particularly if it is a best-seller, can come to the attention of the person it defames.

A publishing lawyer can help authors and publishers avoid defamation claims. For example, this involves carrying out a legal read of the manuscript, highlighting issues and recommending changes to the publication.

A legal read should be done as soon as the manuscript is complete and has been edited. Publishing and defamation are often understood by experienced publishing houses. However, it is important to have a qualified legal professional provide advice.

When is a publication defamatory?

If you want to learn more about defamation specifically, we have written about defamation.

A book could be considered defamatory in the context of a book publication if:

• the book actually ‘hits the shelves’ and is published
• the person being defamed is capable of being identified because of the book
• what is written in the book impacts the defamed person’s reputation in a negative way
• the statements in the book aren’t true
• the author and/or publisher is at fault

In other words, defamation is publishing something untrue that can harm the reputation of a person. Defamation can also apply to small businesses in limited circumstances. On the other hand, large businesses are not protected by defamation, but they have other legal rights.

In Australia, defamation law is set out in State and Territory legislation. It has also been built up by the Common Law (for instance, from Court decisions).

What are some practical steps to avoid defamatory statements?

Remove information that may identify the person or small business

A publication may identify a person:

• by name; or
• by the description of the person’s relationship with other people named in the book; or
• by the description of places, dates and circumstances.

If it is not possible to identify who a person is from the statements made,

Why is truth relevant to defamation in publishing?

It is considered that, by telling the truth about a person, their reputation is not lowered beyond its proper level, but is instead brought down to it. A truthful statement defines a person’s reputation. It does not damage it.

What does truth mean when it comes to a publication?

Whether a statement is true or not relates to what the statement is insinuating, rather than the literal wording of the statement.

For example, think of the statement that ‘Joe Bloggs had to hide from his clients because they were chasing him for money’. The publisher of that statement would need to prove that not only did Joe actually hide. Because the statement could lead a reasonable person to conclude that Joe was hiding because he had stolen money or done something untoward with his clients’ money, this fact would also need to be established.

If the defamatory statement is that someone committed a criminal act, it is sufficient that the person was convicted. And they can be convicted in Australia or in another country.

Avoid making statements that have ambiguous meaning

Publishing a defamatory statement may be caused by saying something with a double meaning. If the publication could leave it open to a reasonable person to adopt one of the meanings. And if that meaning is defamatory, the author or publisher is wide open to risk.

If there is something you don’t know to be fact, don’t say it

What if the author or publishing house didn’t intend to defame?

The intent of the author or publisher of the statement is not relevant to defamation. The statement is either defamatory or it is not.

What if the author believed the statement to be true?

If an author believed the statement to be true, however, the statement is not in fact true, the statement may still be defamatory.

Consider the approach of the person or small business you are making statements about

Having some insight into the person or business you are making statements against can help. While it won’t mean that an author or publisher is protected from defamation, it can help to assess the likelihood of a claim.

If the person or business has a substantial reputation to protect, they will be more likely to enforce their rights and protect their business or personal reputation. For instance, a statement made about a business that is not trading, has no customers or revenue and no goodwill is unlikely to start proceedings for defamation.

From the perspective of the individual or business considering publishing and defamation, it will be a balancing act between:

• the cost to pursue a claim for defamation
• their likelihood of winning
• and, possibly, the extent of offence they took to the statement

Case law examples of publishing and defamation

How can a publishing lawyer help?

Publishing lawyers understand how defamation law works. And they understand how the way something is expressed in a book can lead to or avoid a legal claim.

Even if an author or publisher wants to publish a defamatory statement, it helps to understand whether there is potential that the person will seek to enforce their rights.

How can Prosper Law’s book lawyers help?

Prosper Law is Australia’s online law firm. We provide legal advice to businesses and individuals across Australia. Our areas of legal practice include contracts, eCommerce, publishing, legal counsel and employment law.

If you need to talk to a literary lawyer, get in touch today.

Contact the team at Prosper Law today to discuss how we can provide you with publishing legal advice for a fixed fee.

Farrah Motley | Director

PROSPER LAW – Australia’s Online Law Firm

P: 1300 003 077

E: enquiry@prosperlaw.com.au  

W: www.prosperlaw.com.au

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