When you enter the world of publishing, you enter the world of media, copyright and intellectual property law. The biggest risk is that you will defame someone, and they will sue you. I try not to discuss stuff that can go wrong as a writer; most people are already terrified of publishing.

However, this is important because it’s easy to make a slip up that might land you in court, paying a fine, or pulping your book. We publish to build our reputation, not to have it trashed. In the world of social media trolling, you might think that no one cares. They do.In 2014, a former student had to pay over $100,000 in damages because they posted defamatory social media posts about a teacher at their school. It was the first case of social media defamation.

The small print

Let me say right here and now, I am not a lawyer. Do not act based on information in this story. Seek legal advice. This story is designed to help you know when to seek legal advice.

Tarnishing other people’s reputations

The legal definition of defamation doesn’t help us much. It means you subject someone to slanderous, libellous or defamatory comments or publications that can tarnish their reputation. If you look up all those words, they are interchangeable. What we want to be wary of is giving unnecessary offence.

Deliberate defamation

I use the word unnecessary above because there are times when giving offence is necessary. For example, I have no hesitation writing that the immigration laws introduced this week by the US President, Donald Trump, are discriminatory, hurtful and useless. I’m certainly tarnishing his reputation (I hope) but the cause makes the risk worthwhile. 

If the cause is worth the cost, go ahead and defame them – with two caveats. Make sure you are right. Truth is one of many defenses by only for those with the money for lawyers. Get legal advice before you publish – it’s much cheaper.

Accidental defamation

The real risk in publishing is accidental defamation. We hear a story and publish it without checking whether it is true. Wham! We republish a fact from our book, published two years ago, without checking if it is still true. Bam! We misspell someone’s name, and Thank You Ma’am! We’re gone. We use a quote from our heroine to start our chapter without asking permission. Damn.

Criticism is not the same as defamation

Is the answer to write wimpy blogs and books that say nothing? Of course not. Thought leaders are critical and controversial thinkers. Don’t follow the pack. Be willing to call out shoddy behaviour and thinking. Just think about what you have written from a legal point of view before you publish. Watch for inadvertently causing offence.

Red flags: 15 questions to ask yourself before you publish criticism or defamation

Here are some questions to ask yourself that will help you to spot legal ‘red flags’ that you should then raise with a specialist adviser.

  1. Is what I have written true?
  2. Have I been balanced and considered in my criticism?
  3. Have I made an intentional (or accidental) critique of a person or company, such as calling them immoral, unscrupulous or bankrupt?
  4. Have I ridiculed a company or person’s behaviour?
  5. If I put myself in the shoes of the person or company I am criticising, would I feel offended?
  6. Have I spelled everyone’s name correctly? It’s not likely that misspelling the names of people and companies will land you in court, but it makes people angry and unreasonable.
  7. Have I criticised a person with a common name that might offend others, such as writing John Smith is a stupid, arrogant leader? If you need to criticise John Smith, identify him precisely using middle name, date of birth, position title and company etc. 
  8. Have I checked that my information is from reputable sources?
  9. Have I verified it with another source? (Everyone has an agenda, including the police and the courts.)
  10. Am I quoting primary sources (not quoting someone who is quoting someone else)?
  11. Have I given the subject the opportunity to dispute my point of view and put theirs?
  12. Are they litigious?
  13. Is the cause worth the cost?
  14. Am I a lone voice, or one of many? (No one can sue everybody.)
  15. Am I worth suing and making an example of?

Welcome back to Sticky Content, dear readers. I hope you can join me at my Blog Bootcamp on Saturday the 18th of February. Please click on this link for tickets: https://www.eventbrite.com.au/e/brilliant-business-blogs-bootcamp-tickets-29841404444