A Bind of Judgements

… He that filches from me my good name Robs me of that which not enriches him. And makes me poor indeed. Nowadays if anyone is lucky enough to be robbed of his good name, he is likely to be rich indeed. But the rules of the game have changed since Iago was inciting Othello to search out a slander where there was none. The libel plaintiff is no longer likely to be another literary character but a real person wearing Othello’s mask of mistaken injury. Eight months ago, a Supreme Court decision in the United States wrote a draft for a lot of new plots by making any touchy person a potential libel plaintiff. In the past, authors have had a few easy&shy;to-follow rules for their characters. For instance, a character could not assume the name of a real person. (Many authors did give their characters real names, of course – Frank Moorhouse, Walt Whitman and Jorge Luis Borges, to name an assortment.) The courts always assume that if a real-life character and a fictional character share the same name, the latter is intended as a portrait of the former. No matter how different the two figures may be in important respects, if the portrait is unflattering the real-life character can sue. Nor have fictional characters had the right to say things in their imaginary conversations which could be disparaging to a real-life person. Fictional characters do not have the same rights as real-life people to have confidential conversations that are exempt from prosecution for libel. If a fictional character whispers a story about a real-life character being raped, the real-life character can sue. The US Supreme Court case of Bindrim v Mitchell and Doubleday last December changed those small borders of forbidden ground into a veritable empire where real-life characters can tyrannise over authors. Now any shade of resemblance between a fictional character and a real person can be the basis for a libel action. The character does not have to be a villain; he might just curse occasionally and behave callously towards his wife — it is defamation enough. In most libel cases, ‘truth’ is irrelevant: it may be because the real-life person in fact does curse occasionally and behave callously towards his wife that he is able to claim a likeness. Bindrim is a Californian psychologist who runs encounter groups for naked people — surely not the only Californian to do so, but his work is well known. Mitchell is the author of Touching, a novel about nude groups groping for self-enlightenment. It was published by Doubleday in 1971. When Paul Bindrim read the book, he said he recognised himself as one of the characters, even though the character was named ‘Simon Herford’ and described as ‘a fat, Santa Claus type with long, white hair, white sideburns, a cherubic rosy face and rosy forearms’ while Bindrim is lean, younger and clean-shaven. He had his lawyer send a letter to Doubleday protesting about the likeness. Doubleday asked the author, Mitchell, for her assurances that, if Bindrim had inspired the character of ‘Herford’, he was sufficiently disguised to protect him from identification lion. Then Doubleday went ahead with a paperback edition of the book. Bindrim went ahead with his suit. Bindrim won in a Californian court last October; Doubleday took the case to the Supreme Court and Bindrim won again. He was awarded $75,000 in damages – $25,000 from the author, $25,000 from Doubleday and a further $25,000 in ‘punitive damage’ from Doubleday because they behaved in such a cavalier fashion by publishing the paperback after receiving Bindrim’s warning letter (when most publishers would have pulped the book, apologised, and waited for Bindrim’s next move). Then, in a third contretemps, Doubleday proceeded to sue the author for $138,000 – the whole of its $50,000 due in damages as well as its legal costs for the two trials. Everyone had obviously gone mad. But once the dust began to settle, it began to appear that it was the Supreme Court judges themselves who had the loosest hold on good judgment. Their decision (six for, three dissenting) will change the nature of American fiction much more than market pressures ever could. Their decision, in short, is that a person can be libelled by a characterisation which does not resemble him in many important ways. The witnesses at the California trial established that because both ‘Herford’ and Bindrim were nude-group gurus, the author intended us to associate the two. Also, Bindrim argued that the very discrepancies between the characterisation and his own character were discrediting him: the fictional character uses rough language that Bindrim himself has never been heard to use, but this point did not establish a distinction between the character and Bindrim – rather, it established the author’s malice in her portrait of Bindrim. We could all draw up long lists of books we would not want to be without but which would not have been published in the shadow of this Supreme Court decision. I would not just lament the loss of that wonderful genre, the roman a’ clef Authors who might have written novels as F. Scott Fitzgerald or Hemingway or D.H. Lawrence or Aldous Huxley or Proust wrote theirs will be cautioned not to do so. Any writer who draws upon experiences in his own life and on people he knows is opening himself up to prosecution. Philip Roth’s mother would really give Portnoy something to complain about if she took him to court. And no doubt writers’ ex-wives will emerge from the warrens of their second marriages to seek redress. The worst effect on publishers and authors, however, is not going to be the drain on money and energy of going to court. It is going to be what is known as ‘prior restraint’. This means, publishers are going to be so sensitive to the liabilities of publishing fiction based on fact that the incentives to publish fiction at all, and eventually to write fiction, will be reduced. (Of course, libel laws apply to non-fiction too, but an excuse for saying harsh-but-true things about someone in a work of non-fiction is that it is in the ‘public interest’ for the public to learn such facts; in fiction this exemption is hard to establish.) Since the Bindrim v Mitchell and Doubleday decision there has been a precipitate rise in the status of publishers’ house-lawyers in the United States. Now it is the lawyers who have the final word on whether a novel should be published or not. They sit in judgment on each manuscript, deciding whether it is really a work of the imagination alone. A publisher is not likely to disregard his lawyer’s advice: a novel would have to promise phenomenal success to wager the cost of defending it against the Bindrims of this world. If $138,000 is what the court cases really cost Doubleday and assuming that the publisher makes a $2 profit on each $10 copy sold a book would have to sell 69,000 copies to pay for its trips to the courts. In Australia anyone’s book sales would be a bare fraction of that, but the legal costs here are not much lower than in American courts. There is no way that an Australian publisher’s legal risk might even be a ‘calculated’ one. The extra vetting of the sources of a story and the defensive position novelists will assume when they try to persuade an editor that the book is publishable are just two kinds of ‘prior restraint’. There is also the ‘prior restraint’ which the contract itself exercises upon the author. Most authors’ contracts contain a standard indemnity clause which says that the author himself is responsible for all the costs of successful litigation against the book (and others saddle the author with all legal costs, regardless of whether or not he is cleared of the charges against him). As the courts grow more lenient towards libel plaintiffs and the number of successful cases rises, the number of cautious authors will rise too. Mitchell’s case proves that authors cannot be too careful: she was convicted against all precedents and other writers will certainly fall foul of other ‘landmark’ decisions. There are suspicions that it is only a matter of time until courts allow group defamation actions – Jews suing Shakespeare for Shylock and cockroaches suing Kafka. The near-success of the Gay Rights movement arguing against the misrepresentation of homosexuals in films forebodes the worst for writers. For the author writing a novel now, the advice from the Bindrim case is plain. One, avoid characters whose occupations are not popular ones: you might be able to poke fun at schoolteachers but not at encounter group gurus because in the latter you run a risk of pinpointing individuals. Two, giving a character a few redeeming features does not take the edge off a libel. In fact, careful to say nothing that caters for any prejudice: you may not think it is libellous to say that a character of yours has Aboriginal blood, but a reader might. Three, if you want a real-life person to make a guest appearance in your pages (say, you need Phillip Lynch to attend the dinner party), make him unambiguously positive. Four, if you must write about real people, write about real people who have died. (Would Menzies come to the party instead of Lynch?) The dead cannot be libelled. Five keep a running account of the founts of experience you have channelled into fiction. You must expect your editor to cross-examine you. It is better to be able to substantiate the sources of your inspiration and win your editor’s confidence than not to be published at all. If you have written something crass about your father, your editor can probably draft a document for him to sign, waiving his rights to object. If that makes writing fiction sound less fun, then think of the fun that prospective plaintiffs will have, poring over your story. If this sounds a little remote from Australia, then recollect that just a year before the Bindrim decision the poet and playwright Dorothy Hewett was sued by her former husband, short-story writer and barrister Lloyd Davies. First there was the alleged libel in the poem Rapunzel in Suburbia. That was settled out of court, reputedly for $6,000 from Dorothy Hewett. Then there was the alleged libel in the plays The Tatty-Hollow Story and The Chapel Perilous. That too was settled out of court, with contributions from Currency Press and the author. As Dr Philip Parsons, head of the Drama Department of the University of NSW and publisher of Currency Press, said at the time, ‘The mere threat of legal action is sufficient to inflict commercial damage on author and publisher even if the merits of the case are very slight’. Because both of these cases were settled out of court, they were not reported and have not set precedents as the Bindrim case will. Australian authors don’t insure themselves against libel actions as authors in other countries do. If insurance were available, it would still be too expensive for most authors. The Society of Authors in England, however, has tried to establish a group scheme with rates varying from low for writers of children’s books to high for writers of political commentaries. In a footnote to an article in The Australian Author in 1977, it was announced that a group insurance scheme had been mooted here too but was rejected because ‘many, perhaps most, members would not see themselves much at risk, and so would be disinclined to pay for such insurance’. Well, if Australian authors are publishing their books in Bindrim territory or if the United States Supreme Court decision is adopted by our own judiciary, they may want to reconsider. The only bright news about libel which I have for authors (and it is a very dim light in a very dark tunnel) comes from England. After a number of disputes, the British Taxation Office is now allowing an author to make a full claim not only for the legal costs of his self-defence but also for the damages he ends up having to pay. But before anyone takes heart, I must stress that Australian authors have not tested this prerogative and cannot have high expectations. Of course, in Australia as elsewhere any damages awarded to the libel plaintiff are tax-free. However, I suspect that the Bindrim decision might be sufficient encouragement to libel&shy;minded readers; they won’t need tax incentives to find reason for offence.

Michele Field

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