I see a lot of confusion regarding defamation, libel, and slander. People usually know the terms are related, but they’re not sure how or what they actually mean. Let me break it down.

Defamation is the spreading of false facts (i.e. lies, but lying sounds bad, so we’ll stick with “false facts”). Spoken defamation is called slander, and written defamation is called libel. So if you spread false facts in conversation, you’ve committed slander. If you publish them in a book, you’ve committed libel. Both qualify as defamation.

But that’s not enough content for a blog article, so let’s go a step further. If you’re an author (or songwriter, movie creator, etc.), how do you protect yourself from a defamation claim?

The first step is to go back to the definition of defamation – spreading false facts. If the fact is not false, then it’s automatically not defamation, and the person’s claim gets booted out of court so hard it bounces down the courthouse steps. Of course, you must prove that the fact is true, so it’s a good idea to collect and preserve any evidence that backs up your facts. Even if it turns out your fact is false, you can still show that you did your due diligence and believed it to be true, which can also get you out of a defamation judgment.

On the flip side, if what you said/wrote is not actually a fact, that will also stop a claim in its tracks – it must be presented as a fact in order for defamation to apply. Opinions are not facts; therefore, they cannot be defamatory. But you need to be careful here – it’s not enough to simply add “I think” to your sentence, it must clearly be an opinion. For example, if you say, “I think my neighbor buys drugs at 9 pm every Friday from the drug dealer on the corner of Baker and Peach Street,” it’s not likely people will think that’s an opinion.

Of course, these are just defenses you can bring up in the event of a lawsuit. If you want to avoid the lawsuit entirely (and still keep the objectionable content), the best thing you can do is to hide the identity of the person you’re talking about. Defamation is only actionable if it harms a person’s reputation; if no one knows who you’re talking about, then the person’s reputation hasn’t been harmed. More importantly, if the person in question doesn’t recognize themselves, then they won’t try to bring a lawsuit in the first place. It’s not a guarantee, but it does lower the risk.

And if all else fails, put the project on a shelf until the person you’re worried about dies. Only the person who has been defamed can bring a defamation lawsuit; once they die there is no one who can bring a lawsuit for them. So you can say whatever nasty things about Hitler you want, no one is going to come after you.

If you would like to know more about defamation, or you would like a lawyer to review your content for possible issues, please reach out to me at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.