Publishing Non-Fiction, Risk of Libel

Reputation is an idle and most false imposition; oft got without merit, and lost without deserving.

William Shakespeare

Nothing could describe reputation better than the quote by Shakespeare. It is a flimsy thing and substantial at the same time. And nothing could be more damaging to a person than what another has written to defame this fragile shadow of character. But that is not the start all and end all of defamation. There is a flip side. Truth can be hard. Truly hard. And when written starkly to describe the activities of another, defamation of reputation is used as a sword rather than as a shield to strike down the right to free speech.

Thus, we come back to the wisdom of Shakespeare’s words–‘Oft, got without merit and lost without deserving’. They are potent sentences, stark and shining with the light of his wisdom. When reputation is acquired without merit, losing it is bitter. When reputation is gathered through years of stable character, losing it is undeserving.

Thus, the law steps in to protect people from those who cry foul to defeat freedom of speech and those who lose their well-deserved reputation through libel and slander.

I am concerned, in this article, with libel. My exposure over the last few years has been to establish that non-fiction manuscripts don’t have an impact on the three entities responsible for them, the author, the publisher and the printer.

In India, unlike in any other country in the world, defamation is, in addition to being a civil tortuous liability, also a criminal offense. Most non-fiction I deal with is politically charged or is by the intelligence community intending to write their bit on the ongoing turmoil in the country on religious, political and anarchist grounds. Many truths are revealed, many half-truths unearthed, and many opinions voiced out.

My job is to protect the publisher, by far the most susceptible to an action by vested interests antagonistic with the publication of such material. They offer the softest target to such vested interests who either want publicity, wealth or validation of their image by a doting public. Going through a manuscript, most times unedited, to review every single statement in order to validate its veracity and weed out the unsubstantiated opinions and accusations from cold, hard facts is the only way to protect publishers from accidentally ending up shelling out tons of money and suffer the concomitant ill-effects of prolonged legal action. It is a critical task in the publishing process.

Sec. 499 of the Indian Penal Code sets out clear parameters of libel and what falls as exceptions to it.

In a nutshell, the applicable exceptions are:

1.     Imputation of truth which public good requires to be made or published.

2.     Public conduct of public servants

3.     Conduct of any person touching any public question.

4.     Publication of reports of proceedings of court.

5.     Merits of cases decided in court or conduct of witnesses and others concerned.

6.     Merits of public performance

7.     Censure passed in good faith by a person having lawful authority over another

8.     Accusation preferred in good faith to authorised person.

In addition is the advent of social media and online books and the principle of single publication rule v/s multiple publication rule which gains relevance from the point of view of the statute of limitation for invoking action against libel.

Publication is the critical aspect of libel. Unless something is published and reaches the public eye, it cannot be said to be libel. The law of limitation prescribes a one-year limitation for initiating legal action from the date of publication of such libel. When it comes to social media, the courts across the world considered the multiple publication rule which states that each time something was published or regenerated online, it created fresh cause of action leading to a never-ending cycle of cause of action irrespective of when the publication was made. Limitation period became irrelevant.

In recent times, the view changed in the United States of America and in the United Kingdom to the single publication rule which holds that a statement is considered as published as soon as it enters the stream of commerce, thereby effectively negating the multiple publication rule. In a far-reaching judgment, the Hon’ble Delhi High Court, in the 2013 case of Kawar Butt v/s Asif Nazir Mir, applied the single publication rule for libel on social media and internet publications thereby setting the stage for protection against frivolous action in India.

Publishers are worst hit by cases of libel. This is true in India as well. There are publishers who’ve faced more than a hundred cases of libel and those who have settled such cases by paying a fortune as compensation.

It is important to verify the risk involved in an action against them and to understand the defenses publishers have against such attacks through a valid review of manuscripts.

Freedom of Speech is not only inherent, it also needs to be protected or it will be throttled underfoot and left to succumb under the angry march of nepotism. It is important for publishers to know their rights, understand their obligations and protect themselves and their authors.

The author is a lawyer and published author. To get in touch with the author, write to authorvadhan@gmail.com