Legal matters

I'm not sure if this is an appropriate place to ask, but I figure someone must have come across this dilemma.  If not, I'll go to a lawyer.

 

I don't want to get sued for libel. My book contains no false statements, but it does contain disparaging remarks about people, much of which cannot be proven. Real names and places are not used but an astute person or someone familiar with the situation would be able to figure things out.

 

I was wondering if I incorporated if it would protect me personally against suffering from any damages.  I know laws are different in every state, but i suppose the specific question is as follows.  I live in NJ and the book takes place in NY.  If I formed a LLC in NJ, would I be protected?

Comments


  • employee-x wrote:

    I'm not sure if this is an appropriate place to ask, but I figure someone must have come across this dilemma.  If not, I'll go to a lawyer.

     

    I don't want to get sued for libel. My book contains no false statements, but it does contain disparaging remarks about people, much of which cannot be proven. Real names and places are not used but an astute person or someone familiar with the situation would be able to figure things out.

     

    I was wondering if I incorporated if it would protect me personally against suffering from any damages.  I know laws are different in every state, but i suppose the specific question is as follows.  I live in NJ and the book takes place in NY.  If I formed a LLC in NJ, would I be protected?


    I'm not a lawyer, so take this as you will...

     

    The only defense against an accusation of libel is truth. That is, you need to be able to prove that what you say is based on fact. In short, you say that the statements you make are not false...but at the same time you cannot prove them. If someone were to take issue with what you've written to the extent of suing you, you would be required to provide proof in order to successfully defend yourself.

     

    One thing you say is both a little confusing and a little worrisome. That's your reference to "disparaging remarks." This sounds to me as though all you are doing is being derogatory rather than stating (provable or unprovable) facts. For instance, it is one thing to say "Joe Smith once robbed a bank" and another to say "I think Joe Smith is a rotten @#&;@#$!"

     

    I have no real idea whether incorporating would actually protect you---frankly, I suspect not and, just as frankly, I would not want to take the risk of finding out the hard way. 

     

    It sounds to me like you should sit down and have a good, long discussion with an attorney before you publish your book.

     

     

    __________________________________________
    Black Cat Studios http://www.black-cat-studios.com/
  • Just KevinJust Kevin Lulu Genius

    Ron is right to a degree, but even if you can prove what you say, it will not matter unless you can also afford good lawyers to help you prove it.

     

    As to becoming some type of registered company, no it will not protect you, as many newspapers, magazines and TV shows discover all too often.

     

    It's all very well if you own a string of newspaper names earning a few million a day from advertising revenue because you can afford to hand over a bit of that to some complainant to keep you out of court. It really does not matter because the headline would have already sold many more papers.

  • The 'limited liability' in LLC refers to limited liability to debt, not legal actions. Forming a company will have no effect on whether you can get sued or not.

     

    (Disclaimer: I'm not a lawyer. If you need legal advice, you need an expert.)


  • employee-x a écrit :

    Real names and places are not used but an astute person or someone familiar with the situation would be able to figure things out

     

    Isn't using fictitious person and place names enough to be on the safe side? Hundreds of books have been written this way

     

     

  • The information I gathered by speaking with 2 online lawyers (hey, I cannot afford a zillion dollars on a traditional lawyer) was that to be found guilty of libel, the burden of proof lies with the other party.  I was also advised that a corporate veil would make it more difficult to get sued but would not protect me.  As for name calling (it's all done in a whimsical sense and not mean-spirited, but that's probably irrelevant), I was told that is not illegal and a matter of opinion.  

     

    I've decided to take my chances.  One of the lead characters has passed away and the rest live half way around the world.  Chances are, unless it;s a best seller, they're never gonna know.  And even if they do, I feel comfortable enough to take my chances legally.  It's either that or not publish.

  • Good luck.

    __________________________________________
    Black Cat Studios http://www.black-cat-studios.com/
  • Just KevinJust Kevin Lulu Genius

    The information I gathered by speaking with 2 online lawyers (hey, I cannot afford a zillion dollars on a traditional lawyer)

     

    Free lawyers?!! But be aware that they all specialise, so some may not have the knowledge to advise on specific things, but have a go at guessing, and a lawyer's headed letter can have a power all to itself. One problem with lawyers is that they often work on bluff for people. They will send out a letter of threat hoping that the recipient is unaware of the laws and comply with what ever is demanded..

     

    was that to be found guilty of libel, the burden of proof lies with the other party.

     

    Only in one way that is true. They have to prove what you say is wrong, but then you have to prove it is correct, so the burden is on both sides. It can be very very expensive for both parties and at least doubly so for the loser because do they not get the entire bill?

     

     I was also advised that a corporate veil would make it more difficult to get sued but would not protect me.

     

    Possibly only if you employ many many people so that it's not easy to work out exactly who to sue, but usually works of writing have someone's name on them, or someone will point a finger to avoid getting sued themselves.

     

     As for name calling (it's all done in a whimsical sense and not mean-spirited, but that's probably irrelevant), I was told that is not illegal and a matter of opinion.

     

    It does not have to be illegal. Upset people can take out private cases against people. In the case of things like libel/slander, that is against the law. But it has to be proven or disproved to work out if any law has been broken.

     

    There's a famous satirical publication in the UK (Private Eye) who seem to get sued all the time. Often they win often they lose. They just roll with it.

     

    http://www.private-eye.co.uk/

     

    I've decided to take my chances.  One of the lead characters has passed away and the rest live half way around the world.  Chances are, unless it;s a best seller, they're never gonna know.  And even if they do, I feel comfortable enough to take my chances legally.  It's either that or not publish.

     

    And as said, good luck.

  • Hello employee-x

    Have a look at this article: Non-fiction Writing: Being Mindful or Defamation and Privacy Rights

     

    It may provide some additional guidance.

  • Also not a lawyer, and also not giving advice here, but:

     

    In my understanding of defamation law:

     

    On the one hand, to make a case for libel, the person suing needs to show that you made statements that are false, that are damaging to them, and that can be clearly matched to them. If the figures are public persons, they must also show malice. You can also run into trouble if you use a real person's likeness or name without consent, as the others (unless they are public figures) have a right to privacy.

     

    On the other hand, to have an affirmative defense (i.e., "Yes I did it but it wasn't wrong because...") you must show that the statements are true. That is the only affirmative defense provided in defamation law.*

     

    You *might* -- key word *might* -- be able to get away with a defense of, "They can't prove that it's obviously about them," or "They can't prove that it's defamatory and/or damaging to them." In theory, you can't sue someone and win unless their actions cost you something.  In practice, that's not so black and white.

     

    Case in point: If you wrote a hypothetical magazine article, in which you said that Fidel Castro was a space alien with three heads, only one of which is visible: Well, you might get away with it. Castro has no standing to sue in US courts, the statement is not defamatory on the face of it, and Castro is a "Public Person" so you could claim it was satire or criticism.

     

    On the other hand, Liberace, the flambouyant entertainer, once famously sued a writer for implying that he was a homosexual. Liberace won. So public persona and lack of actual malice may or may not save you.

     

    In general, get a real lawyer and tell him exactly what you plan to do, or play it safe.

     

    Hope that helps.

     

    ________________________________

    *curiously, not all nations follow the affirmative defense rule. In the RPI, if you call someone a thief and he is, in fact, an actual thief, as borne out by actual evidence, you may still be charged with "Grave Oral Defamation."  It is either a tort or a crime, depending upon the court in which the case is heard.

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