Originally published in The In-House Lawyer, Aprii 2007

Many publishers of fictional books assume that the classic phrase ‘any similarities to actual persons, living or dead, or to any actual events, firms, institutions or other entities, is coincidental and unintentional’ will protect them if a claim of defamation is made against them. This is not correct. The simple fact of the matter is that if members of the public associate a character in a book with a real-life person, even if that is not the intention, then they may be subject to a claim if an association can be made and defamatory allegations are published. Below are two examples of publishers that have faced such claims.

SAFRA V ARCADIA BOOKS LTD

Arcadia Books Ltd published a novel by Lady Colin Campbell entitled Empress Bianca, which millionaire socialite Lily Safra claimed was defamatory of her. Shortly after receipt of the letter of complaint from Safra’s lawyers, Arcadia Books Ltd decided to pulp copies of the book rather than incur the time and costs of defending a legal action.

WERE V HODDER & STOUGHTON

Johnny Come Home was published by Hodder & Stoughton Ltd and written by Jake Arnott. The book contained a character called Tony Rocco who was said to be a popular music manager famous for having had a hit single in the 1960s. Rocco was depicted in the book as having a reputation for being a ‘predatory pederast who lusts after teenage boys’. Real life singer Frederick Were, who has performed under the stage name Tony Rocco, claimed that readers of the novel who were familiar with him would have understood the character in the book to refer to him. The defendants subsequently apologised for the distress and embarrassment caused to Frederick Were and confirmed that the character of Tony Rocco in the novel was not intended to depict Frederick Were or refer to him, and bore no relation to his personal life. As well as paying a substantial sum in damages and legal costs, the publishers also agreed to endeavour to recall all copies that included the character and to change the name of the character in all future reprints of the book.

IMMEDIATE ACTION

If a mistake is made, it is important to consider what action can be taken after the event to make amends and, perhaps more importantly, to reduce a claim for damages. First, as soon as a complaint is made and there is a suspicion, even a small one, that there is any merit to it, then attempts should be made to immediately recall all copies of the book. Secondly, if the company has insurance, the insurers should be notified immediately. Thirdly, everyone connected with the book, including the author, should preserve all documents that they have relating to the book, including draft manuscripts.

OFFER OF AMENDS

If it transpires that a mistake has been made then it is more than likely that the legal advice given will be to make an offer of amends under s2 of the Defamation Act 1996. This is essentially an offer to make an appropriate apology, to pay an appropriate sum in damages and to pay the claimant’s reasonable legal costs. The speed with which an apology is published is one of the factors that the court will take into account when considering the issue of damages.

Damages

Research from Sweet and Maxwell for 2005/06 reveals that the offer of amends procedure has been used in 38% of reported defamation cases. This is an increase of 17% on the figures for 2004/05. Although the procedure has been used many times since its introduction, there has only been a handful of cases where the parties have not been able to agree the appropriate sum of damages and it has been left to the court to assess the appropriate sum. In many of these cases, the publication, or even the offer, of an apology can provide a discount of between 33.3% and 50%, depending on the circumstances and wording of the apology.

In the case of Angel v Stainton and another, the agreement of the defendants to the publication of a statement in open court was recognised by Eady J as a factor that helped to reduce the discount to 40% of £40,000, giving a damages figure of £24,000. The discount would have been higher in this case had the defendants not aggravated the damage that had been caused by referring to matters that were clearly not appropriate. In the case of Veliu v Mazrekaj and another, which is the most recent reported case on the assessment of damages following an offer of amends, a discount of one-third of £180,000 was given to Mazrekaj to reflect the quick apology that was agreed by him, giving a damages figure of £120,000.

In an ideal world, cases of mistaken identity would never arise. Unfortunately, we do not live in an ideal world. If a mistake is made, it is important to seek legal advice at a very early stage from either the inhouse lawyer at the publishers or a firm of solicitors that has specific expertise in this area.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.