One may wonder if Shakespeare has Hamlet declaiming “Whether tis nobler in the mind to suffer the slings and arrows of outrageous fortune, Or to take arms against a sea of troubles, And by opposing end them” might be referring to his having been sued for libel or defamation, or otherwise placed in jeopardy, as the fallout from one or more of his historical plays.

In any event, it should be understood that an author can do little to avoid being sued for allegedly having libeled or defamed someone in his or her writings. However, while it is better that an author not be sued for having allegedly libeled or defamed someone, winning any such litigation would definitely be a desirable result and there are some things an author should keep in mind to that end.

Typically, an individual suing an author for libel or defamation must establish a number of elements:

1. That the alleged libelous or defamatory statement concerning the plaintiff was written in contrast to having been uttered orally. Indeed, an oral statement alleged to have been libelous or defamatory is called as “slander.”

2. The writing must actually have been published for consumption by a third party.

3. The plaintiff must prove that the offending statement was written by the author, was, as noted above, actually published, and is false.

In Wexler v Dorsey and Whitney, the United States Second Circuit Court of Appeals, citing Brian v. Richardson, 87 N.Y.2d 46, explained, “falsity is a sine qua non of a libel claim and since only assertions of fact are capable of being proven false, we have consistently held that a libel action cannot be maintained unless it is premised on published assertions of fact.”

A general rule, whether the alleged libelous or defamatory statement is a “factual representation” in contrast to being a statement of opinion or rhetorical hyperbole is a question of law for the court to determine.

For example, in Palin v. N.Y. Times Co., 940 F.3d 804, the plaintiff argued that when the headline was viewed together with the text of the challenged article, it was obvious that it is “of and concerning” him, that the words used by the author were “reasonably susceptible to conveying a defamatory meaning, and that the headline [plaintiff objected to] is not protected as an opinion.”

In analyzing a statement to determine if it constitutes a statement of fact, or merely expresses an opinion, courts consider three basic factors:

(1) Does the specific language at issue have a precise meaning which is readily understood?

(2) Is the alleged libelous or defamatory statement capable of being proven true or false?

(3) Is the communication in which the offending statement appears, or in consideration of a broader social context and surrounding circumstances, such that the reader is likely view it as opinion and not fact?

This “context” factor includes not only the immediate context in which the disputed words appear, but also considered is the nature of the particular forum.

In addition, it must be kept in mind that even if a statement is deemed to be an opinion, there may be liability for libel or defamation where there is a clear but false implication that the author is privy to certain facts about the person that are unknown to the general reader.

The bottom line is that, if the court finds that the offending statement constitutes opinion, it is not actionable. Indeed, where tenor of the writing reflects that it is meant to be not only informative, but also amusing and entertaining, hyperbole in the title of the item or its headings and subheading may be viewed by the court as to be expected and reasonable. Thus, courts may conclude such embellishments are non-actionable opinion rather than fact.

Finally, it is always desirable to have the final draft of your work reviewed by an attorney with an eye towards avoiding litigation for alleged libel or defamation but, should a lawsuit be brought, that the author has a viable defense and will likely prevail.

Harvey Randall formerly served as Principal Attorney, New York State Department of Civil Service. He also served as Director of Personnel for the State University of New York system and as Director of Research, Governor’s Office of Employee Relations. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School. Randall maintains a law blog of the same name focusing on New York Public Personnel Law.