Publishing non-fiction

Sunday 31st January 2010 05:05pm 1
ieruiz
ieruiz
1 Posts
Cloud dwellers,

I've got a question about non-fiction and libel.

I've assembled a collection of short stories about my riotously funny days in Catholic Prep High School(30 years ago), and I'd like to get them published.

Friends have advised me to be careful, since I'm using real names, real places, and real events. Some of the stories don't exactly show a person's best side - and I'm sure that some of the teachers named would prefer it if I kept the stuff to myself. There are probably a handful of things that some of my long lost classmates would rather not see in print either.

I'd hate to change the names however. And I feel strongly that the best way to honor our times together is to just lay it all bare.

Do I have anything to worry about, and is it better to consult a professional about it?

How might I go about finding someone with the right credentials who could help?

Thanks,

Isaac
Sunday 31st January 2010 06:04pm 2
Caducean Whisks
Caducean Whisks
585 Posts
In my very non-professional opinion, I say that if you are using real names, events, places, etc, then yes, you do have to worry.
I am assuming that you're not writing about any serious offence that may result in a police investigation against someone? If so, that's an entirely different matter and I suggest you report it to the police directly, rather than go round the houses to expose them.
If you're writing about japes and so forth (as you imply), the honourable thing would be to ask the people concerned. While you may feel for you, that it's best to lay it all bare, you're not giving the real people any choice, are you? They get outed, whether they like it or not and may feel that you have harmed them by your revelations - if so, they may recourse to the law.
I believe that there may be a defence against libel of "fair comment", but to defend yourself with this, what you say must be a) completely true and b) you must be able to prove it to be true. The second point is the rub. You saying it is true, is not enough; and whatever evidence you have, will be cross-examined.
Why do you feel so strongly that you need to ensure these people are identifiable? It may cause hurt, upset, embarrassment and more, by what they may see as a betrayal of trust. Why do it?
If you're adamant that they must be named and shamed, I'd suggest you consult a lawyer - rifle through the Yellow Pages for one that specialises in libel.
To reiterate - I'm not a lawyer and am not qualified to advise you. I don't know what's contained in these stories so I may be way off the mark and these are only my thoughts; I think your friends are right. I'd suggest you don't kiss-and-tell.
Sunday 31st January 2010 06:38pm 3
EmmaD
EmmaD
662 Posts
Two issues here, it seems to me:

1) could you be sued for libel?
2) how do you feel, morally, about exposing stuff like this.

1) As I understand it - and I'm not a lawyer either - as a writer you are guilty of libel if you write something about a living person which is a) untrue and b) damages their livelihood or reputation.

Truth is an absolute defence against libel: you can say that solicitor X embezzled clients' funds if you can prove they did: the obvious thing would be, say, if it's on record that they were convicted of that crime, or they made a confession on TV.

An opinion - saying 'I think X is an old skinflint' - isn't libel, but accusing them of an action 'I think X embezzled money from his clients' is, if he didn't. Obviously, there's a grey area in this, and it's not a grey area you want to be exploring ini the company of several very expensive lawyers.

But libel laws are backwards, compared to the rest of the law: if you write something which says a person did something bad, as far as the law's concerned you're guilty of libel unless you can prove you're innocent. If you write that Y slept with his boss to get promotion, and Y sues you for damages on the grounds that it's damaged his professional and personal reputation, then you have to prove that he did sleep with his boss: he doesn't have to prove that he didn't. If you were sued, could you prove to a court of law's satisfaction that your stories actually happened? Bearing in mind that hearsay is not evidence in law, so the fact that someone else told you that they heard about whatever, won't be admissible?

The writer and the publisher are jointly liable for a libel action, and a publisher's contract will include a clause where you guarantee that there's nothing libellous in it. So you'd better be sure there isn't, or I guess they'll come to you for their share of the costs and damages, when they get sued for publishing your libellous book. (Sorry, that sounds a bit bossy, but you see what I mean...)

With material like this, I would suggest that you're particularly at risk with the teachers. With your contemporaries, most people (both those you accuse and any lawyers advising them) would shrug it off as childhood misdeeds, less likely to damage their adult standing, and a court would - I guess - feel the same. With the teachers it's very, very different. Because their professional standing and even livelihood are very vulnerable to tales of misdeeds, whether true or not, it's a much more serious matter for them. If a story gets out like that, they'd be much more likely to need - as a matter of survival - to defend themselves in court against such an accusation if they possibly could, and the damages if they won - which you and the publisher would have to pay - would be much greater.

The Society of Authors has a guide to libel, which you can buy even if you're not a member:

http://www.societyofauthors.org/guides-and-articles/

2) Morally: only you can make the call on this one. But I agree with Whisks that you might want to think about the effect that these stories will have on those named in them. It is, of course, entirely your right to say what actually happened (assuming it did). But what's just a rollicking good story to you could do a lot of damage elsewhere. You could argue that that's not your problem: people are responsible for their own actions, and no one can be outraged if what they did in the past catches up with them. Maybe I'm being melodramatic here, but if I were tempted as you are, I'd force myself to think hard about what the repercussions on other lives might be, and have a think about whether you can live with knowing that you caused them. In trying to clarify that, I might also, as Whisks suggests, have a think about why I want to tell these stories. If they're great stories, maybe they would be just as good written as fiction.

Emma
Monday 1st February 2010 12:46pm 4
SM Worsey
SM Worsey
228 Posts
Ieruiz, I would re-iterate this point: "The writer and the publisher are jointly liable for a libel action..."

The famous 'McLibel' trial rested not on the people who originally wrote the leaflets alleging bad ethical practices by McDonalds Corporation, as nobody knows who they are. It rested on the people who printed and distributed the leaflets.

If someone makes libellous comments on a radio or TV phone in, the broadcaster could be accused of libel. If a journalist makes comments about a celebrity, it is their paper or magazine that will be sued.

Therefore, if you use real names in your story and make stetements that someone is likely to feel could damage their reputation, no publisher will touch it with the proverbial barge pole. Can't you just write a fictional story, based on your experiences? Or change all the names?
Monday 1st February 2010 01:48pm 5
EmmaD
EmmaD
662 Posts
Having said all that, and basically agreeing with SMW, if a publisher wants a book enough, and the writer is willing to warrant, legally, that everything they say is true (and therefore, by definition, not libellous) then the publisher may be willing to pay for it to be read for libel, and if the libel lawyer okays it, they may go ahead. I assume that's the basis on which misery memoirs, which are full of the writer saying people did bad things, are published. But the publisher has be be very, very confident that the costs of being sure they're in the clear, will be repaid in sales.

The other thing I would say is that it's next-to-impossible, basically, to get a memoir published if no one's heard of you, because why would anyone buy the book? It has to have a really strong USP, so unless your name is already known for something, or you can catch on the end of the fading market for misery memoir, or it's at the high-literary end of the market, it's extremely hard for them to market and get publicity for, which makes it even more unlikely that they'd take it on in the teeth of uncertainties about libel.

Having said that, there's nothing on earth to stop you sending it to agents. If an agent loves it enough, and has the time and expertise for the editorial input, they might be able to help you make it saleable.

Emma
Monday 1st February 2010 01:57pm 6
Caducean Whisks
Caducean Whisks
585 Posts
A tangential thought here, but since this is under "self-publishing", it begs the question - do such publishers actually read and vet what they publish? I hadn't thought they did, given that YOU are paying to publish so why do they care? - but if they might be liable, then they ought to really, oughtn't they? Does this mean that they would take a stance on what they'd be prepared to publish?
I've never gone this route but I have looked at a website or two - it appears that you just upload your text, choose your binding, stump up the money, press the button and bosh, your book is published.
Not so?
Monday 1st February 2010 03:06pm 7
EmmaD
EmmaD
662 Posts
Historically, printers are jointly liable from the days when printers and publishers were the same people.... there's a fascinating little bit of history about that which I won't go into - so I'm not sure they can get away with saying they're not liable, just because they're a printers, not publishers (I imagine that proper publishers have a contract with their printers which indemnifies the printer against such trouble.)

It probably depends on the fine print of the contract between you and the self-publishing company - who may well be a vanity press pretending they aren't - and things like whether the ISBN you use is registered under their name (likely, if they give you a 'free ISBN', not if you buy them yourself). I'll bet that somewhere in there you warrant that it's not libellous etc. etc.

I think I'm remembering right, that a self-publishing outfit in the US who are notoriously litigious so I won't mention the name, were sued for the plagiarism in the book they published for a writer, and lost, and then sued the living daylights out of the writer...

You so don't want to go there...

Emma

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