Mistaken Identity And Defamation: How To Reduce The Impact Of A Damages Claim

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...