Monday, August 01, 2005

More thoughts on Empress Bianca

Early last Friday morning (29 July), when I was not as awake as perhaps I should have been, I wrote about the difficulties being experienced in relation to Lady Colin Campbell's new novel, Empress Bianca. The statements that I made in that post require, I think, a little further elaboration.

But first, a brief recapitulation. Empress Bianca was published in March this year, in the UK, by a small English firm called Arcadia Books. Soon after it appeared, a wealthy individual named Lily Safra claimed that the principal character in the novel was based on her, and she therefore threatened to sue for libel. Mrs Safra, by the way, is said to be the richest widow in the world.

As I understand it, anyone suing for libel is essentially claiming that they have been defamed. And the classic definition of defamation is the following: 'A statement concerning any person which exposes him (or her) to hatred, ridicule or contempt or which causes him to be shunned or avoided or which has a tendency to injure him in his office profession or trade.'

Arcadia Books evidently decided that, regardless of the rights and wrongs of this matter, it was too expensive for them to defend themselves against Mrs Safra in the law courts. So they withdrew all copies of the book and have undertaken to have them destroyed.

Lady Colin Campbell, however, took a dim view of the Safra allegation, and has threatened to sue Mrs Safra in return. You can read a full(ish) account of the whole matter in the Independent.

This case nicely illustrates some of the dangers and problems relating to the law of libel in England. And those of you who at this point decide that you need read no further, because you live in the USA or wherever, should think again. For two reasons.

First, you will undoubtedly have libel laws of your own to contend with; and, second, it is far from unknown for the authors of books published in, say, the USA, to be sued for libel in the English courts. Even if the book has never formally been published in England.

If someone wants to make trouble for an author, because of real or imagined damage to their reputation created through the publication of a book, all they have to do, to sue in England, is prove that one copy of the book has been sold here; e.g. through Amazon. This is not difficult to do. And there are good reasons for aggrieved parties to sue here rather than in, say, the American courts, because English libel law is much more favourable to the complaining party (the plaintiff) than are the laws in many other parts of the world. Hence the phenomenon known as 'libel tourism'.

Back to Empress Bianca and the arising issues.

To remind myself of the key points of law, I turned to what is, in my opinion, the best book on libel for the lay reader in England: Reputations Under Fire, by David Hooper. This is both an entertaining read (provided, of course, you have never been involved in a libel action yourself) and a source of much useful information.

On pages 422-437, Hooper provides a valuable discussion of 'libel in the world of make believe' -- i.e. in fiction.

First of all, what is Lily Safra complaining about? Well, she says that 'friends' have pointed out to her that there are remarkable similarities between the lead character of Empress Bianca and herself. The character, as portrayed in the book, is a ruthless person who murders two of her four husbands. Mrs Safra therefore alleges (I presume) that she has been defamed.

Have your friends ever pointed out to you that a character in a book bears an uncanny resemblance to yourself? No, me neither. But you will find, in these cases, that the person complaining always has lots of attentive friends who are assiduous in scanning the bookshelves for volumes which traduce the innocent.

The publishers deny that Mrs Safra has been defamed. However, Gary Pulsifer, the managing director, says 'We're too small to fight something like this', and he seems to have agreed to more or less everything demanded by the Safra lawyer (who, incidentally, once negotiated Princess Diana's divorce from Prince Charles).

Why would Arcadia do this, if they believe that the book is not truly defamatory?

Because fighting such cases is notoriously expensive and also difficult. English law very much favours the plaintiff (i.e. the person who claims to have been defamed).

David Hooper tells us that the law makes an 'initial assumption in favour of the plaintiff that defamatory words are false and that he or she is of good reputation. Equally helpful to the plaintiff is the fact that he or she does not have to prove actual damage as a result of the libel.'

The traditional defence in libel cases is to assert that what has been published is true, and then prove it. This is the reverse of what common sense would suggest. You might think that the plaintiff ought to have to prove that she has suffered damage; but she doesn't. And, furthermore, if your defence is that the words complained of are true, you may be in difficulty. Witnesses may be reluctant to come forward and testify that a man is a serial murderer, for obvious reasons.

And if the book in question is a novel, which is supposed to be an invented work of fiction from start to finish, then proving that the allegations are true is scarcely an option.

In short, if someone chooses to allege that you, the novelist, have written about them in a defamatory way, then you have got a big problem.

What can you do to prevent this happening?

Most of the cases that are brought are based on novels which use the same name for a character as that of a real person. So if, for instance, you write about a mass murderer, by the name of Manfred Blennerhassett, who is (you say) a retired Colonel, and you describe him as living in Argyle Street, Wimbledon, then you had better take very good care care to make a number of checks.

First, do a Google check to make sure that there is no real-life person of that name who has been convicted of anything (preferably), and certainly not of murder.

Next, check the Army list to make sure that there is not a real-life retired Colonel (or anything else) with the name that you have selected. (And by the way, it is often thought best to choose very common names, rather than unusual ones, for bad guys.)

Third, make sure that there is no Argyle Street in Wimbledon, or anywhere nearby for that matter.

And, finally, keep notes about these things: how you selected the name, what checks you made, et cetera. In 1974, the author Tom Sharpe chose an outlandish name for a character who was a portrayed as a television presenter in Porterhouse Blue. Tom Sharpe assumed that the name was sufficiently absurd for it not to exist in real life. But behold, out of the bowels of the BBC there crept an individual with that very same name.

Sharpe was advised that, since he had kept no notes of checking the BBC staff directory (for instance), he had no defence. The plaintiff was paid £250. This was scarcely enough to bankrupt Mr Sharpe, but the episode no doubt caused him worry and expense.

Frankly, any author who fails to check the relevant professional directories for characters who are military officers, clergymen, doctors, and so forth, is just asking for trouble. And, since all these professional persons seem to have legions of friends who will swear that, when they read your book, they immediately viewed it as a vile slur upon the character of a noble doctor, admiral, or whatever, trouble you will assuredly get.

I once had a book published by a man who told me that one of his authors had named all his characters after people living in his village. This is not a good plan, and the book had to be pulped. As did Piers Paul Read's novel Polonaise, when he referred to a certain Lord Derwent, without bothering to check whether there actually was a peer of that name and whether he had a sense of proportion about these things.

By now you may be wondering if there is anything else that you can do to avoid being sued for libel. Yes, there is, and the advice comes from Peter Carter-Ruck, who was the most famous libel lawyer of them all.

To be certain that you will never be liable to pay damages for libel, you should 'refrain from writing, printing or publishing or distributing any written matter of whatsoever nature.' So that's easy enough, isn't it?

But what of Lady Colin Campbell's threat that if Mrs Safra doesn't shut up and go away, she will sue her in return? Now that would be really interesting. And it would constitute, so far as I know, a first.

Presumably -- and I am groping in the dark here -- presumably Lady Colin would claim that, when Mrs Safra alleged that she (Lady C) she had used her (Mrs Safra) as the basis for a character in a novel, she (Mrs S) had libelled Lady C. Lady C would claim, in short, that she (Lady C) had been defamed.

It seems to me, speaking purely as a layman, that Lady C would have a pretty good case. As we have seen, Lady C, in counter-suing, would not even be required to prove actual damage. And it would, presumably, be up to Mrs Safra to prove that her original allegation was true. She would have to prove that Lady C had, deliberately and knowingly, based the character in her book on Mrs Safra, in order to expose Mrs S to hatred, ridicule and contempt, et cetera.

That, I suggest, would be mighty difficult. And that is the point which I was trying to make last Friday morning; though I did so too briefly and somewhat clumsily. I hope today's effort is clearer.

For more on libel (if you can bear it) see my post of July last year about the memoirs of Peter Carter-Ruck.


Anonymous said...

"Because fighting such cases is notoriously expensive and also difficult. English law very much favours the plaintiff (i.e. the person who claims to have been defamed)."

I have a slight disagrement here. English Law very much favours those who have lots of money. Because of the way the law is, and because of the immense costs involved in fighting a libel case, the only people who are able to fight a trial are usually those with lots of cash. Hence we see a phenomena whereby publishers face either going to the wall and standing up to libel trials or paying damages and bailing out, as is clearly the case in this instance. This is analogous to the problem that ISP's have with libel and content published on websites they host - often it's easier (and cheaper) to pull the plug, rather than make a principled stand in court. If this is justice, then I think we need to rethink the priorities of our courts.

Anonymous said...

Nobody's gonna sue you if you don't have a pot to piss in...that's the key to free speech, be judgment proof. G.

Anonymous said...

Is Empress Safra basically admitting that she killed her husbands? Perhaps you can get away with THAT in Argentina, not in the UK or the US....what am I missing? Murder is murder and she's got a heck of a lot of hutspa and cash to admit to killing a spouse or two! Ted Kennedy wasn't even that stupid!

Anonymous said...

is there are pdf version of the book still at one site on the web to download ?!

Anonymous said...

My mother phoned me today to tell me that Dominick Dunne mentions this case in his monthly column in September's Vanity Fair. (Lady C. is my mother's cousin).

It will be interesting to see how this pans out. I don't know enough about such cases, it seems to me on face value that Lady C. might have a good case.

In fact, hasn't Dunne himself written novels in the past that were loosely based on truth? Did he have any legal problems?

I suppose now it will be next to impossible to get a copy of the book.

Anonymous said...

Clearly, Lily Safra has a guilty conscience. An innocent man is still rotting in jail in Monaco for a manslaughter he did not commit, and she has done nothing to intercede on his behalf. That is mighty suspicious, for a start. Have you read anything about Edmond Safra? He lived in utter terror for his life. How did he get so staggeringly rich so fast? Why did his very close brothers advise him against marrying Lily, thereby causing him to brush them off? Also, there's a Republic bank executive languishing in U.S. jail, for about five years now, on contempt of court charges. The whole Safra affair stinks to high heaven and now we see a work of imagination being ruthlessly crushed into the bargain.

Anonymous said...

Dominick Dunne has written an article about the book by Lady C. in Sept and August issues of "Vanity Fair". I read both myself.
Is it possible to get a copy of that book now, or it's forever gone at this point? Anyone knows?

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