Publishing
Legal issues to consider when self-publishing
Self-publishing can be an exciting and rewarding way to get your work out into the world. With the rise of digital publishing, it has never been easier to self publish
Authors and publishers need to avoid claims that might make a publication defamatory. If a book is defamatory, it may lead to legal action being taken against the author and/or the publisher. A book with defamation statements in it, particularly if it is a best-seller, can easily come to the attention of the person it defames.
A publishing lawyer can help authors and publishers avoid defamation claims. This guide explores:
How to avoid making defamatory statements
What if the author or publishing house didn’t intend to defame?
Case law examples of publishing and defamation
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:
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).
Learn more about 5 things every author should know about publishing law in our article.
If you’re making a negative statement about a person or business, authors should try to change the details that might make that person or business identifiable to their readers. For example, changing names, gender, industry or locations.
A publication may identify a person:
If it is not possible to identify who a person or business is from the statements made, the risk of defamation is lower.
It is a defence to a claim for defamation that the statement is true. But what exactly does ‘true’ mean?
Firstly, the assessment of whether something is true is the civil standard of proof – on the balance of probabilities.
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.
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.
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.
Publishing a defamatory statement may be caused by saying something without a reasonable basis for the statement.
Authors should ensure they have reliable evidence to back up any statements they make in their work.
If you’re self-publishing, check out our article on legal issues to consider when self-publishing.
The intent of the author or publisher of the statement is not relevant to defamation claims. The statement is either defamatory or it is not.
If an author believed the statement to be true, however, the statement is not in fact true, the statement may still be defamatory.
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:
This High Court of Australia case involved Joseph Gutnick, an Australian businessman, who sued Barron’s, an online publication in the US by Dow Jones, for defamation. The article published online accused Gutnick of being involved in money laundering and other financial misdeeds.
The High Court held that defamation occurs where the material is accessed and read. In this case, the defamatory material was accessed and read in Victoria, Australia, which gave Gutnick the right to sue in that jurisdiction.
In this case, Australian actress Rebel Wilson sued Bauer Media for defamation after several articles were published claiming she had lied about her age, name, and upbringing. Wilson argued that the false statements damaged her reputation and affected her career.
The Victorian Supreme Court awarded Wilson $4.56 million in damages, a record in Australian defamation law at the time. The court found that the defamatory articles had harmed her personal and professional reputation, directly influencing her ability to secure high-profile acting roles.
Consult a publishing lawyer to conduct a legal review of the manuscript. They can assess potential risks and provide guidance.
Yes. Defamation is based on the effect of the statement, not the author’s intent.
Even if you believe it to be true, if the statement is false, it may still be defamatory.
Yes, but only to small businesses with fewer than 10 employees. Large businesses are not covered under defamation laws but may have other legal protections.
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