THAT’S NOT TRUE: Thoughts, Novel or Not, on Truth, Context & Defamation

James P. Flynn, Managing Director of the Firm and Member in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider, titled “THAT’S NOT TRUE: Thoughts, Novel or Not, on Truth, Context & Defamation.”

Following is an excerpt:

Defamation cases are hard ones in the real world.

Recent US matters involving Dominion Voting, Sara Palin, and even Cheetos show that these cases continue to interest the general public as well as legal cognoscenti. Resolving these lawsuits is dependent on understanding concepts of truth, accuracy, fact, opinion, and all manner of issues that define the context of the statements at the root of the claims. As one U.S. court noted in upholding the dismissal of a defamation claim, the law “provides redress for injuries to a person’s reputation…caused by statements that ‘tend[] to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number in the community,’” but “a threshold issue for resolution by the court is whether the statement alleged to have caused plaintiff an injury is reasonably susceptible to the defamatory meaning imputed to it.”  As the court went to note in that case, Levin v. McPhee, 119 F.3d 189, 195 (2d Cir. 1997), “[t]he court’s threshold inquiry is guided not only by the meaning of the words as they would be commonly understood but by the words considered in the context of their publication,…as well as ‘from the expressions used as from the whole scope and apparent object of the writer.’”   In the end, to succeed, a defamation suit plaintiff “must prove that the defendant published a false, defamatory statement ‘of and concerning’ the plaintiff with a certain degree of fault,” as one source summed it up.  To paraphrase my opening above, “[f]amously, defamation cases are hard for plaintiffs to win, and purposefully so,” and this is especially so in the United States.

Defamation cases are even harder in fictional worlds. (I am not talking about suits in the raising claims of defamation of avatars in virtual worlds. While commentators have long sought to justify applying real-life consequences to Second Life settings and its avatars or to protect as important online gaming personas, and more recently have repeated such musing as to virtual reality platforms and other augmented reality forums, these settings seem one step further removed from what should come into our courts.) 

I am talking about cases, somewhat frequently filed, where a real person claims that a novel, television show or other fictional work defamed them. Those are hard cases legally and raise all manner of interesting issues as to what “fact” and “truth” mean in many settings. See, e.g., Robert Richards analyzed them in some detail in When Ripped from the Headlines Means See You in Court: Libel by Fiction and the Tort-Law Twist on a Controversial Defamation Concept at 121 (“’[t]he gradation from fact to fiction in creative works—or more likely, from representational fact to fact-infused fiction—raises difficult issues about the balance between private rights and First Amendment interests.”  The difficulty of so-called “libel by fiction” cases struck me recently (though not for the first time, albeit there more as a matter of copyright and publicity rather than defamation) when I read that Nona Gaprindashvili recently settled the earlier lawsuit that she had brought against Netflix over The Queen’s Gambit, a fictional streaming series based on a 1983 eponymous novel set in the 1960s chess world. 

Nona Gaprindashvili sued Netflix in September 2021 for “false light invasion of privacy” and defamation after a line in the hit series stated that she “never faced men” at the chessboard. In reality and in the novel that was the series’ source material, Gaprindashvili faced male opponents in chess matches during her career, including three world champions (grandmasters Mikhail Tal, Boris Spassky, and Viswanathan Anand), and in fact, the novel on which the series was based had said “[t]here was Nona Gaprindashvili, not up to the level of this tournament, but a player who had met all these Russian Grandmasters many times before,’” as a commentator noted. Gaprindashvili had leverage to settle that case because a California federal district court had ruled in 2022 that “[a]s an initial matter, Netflix does not cite, and the Court is not aware, of any cases precluding defamation claims for the portrayal of real persons in otherwise fictional works. On the contrary, the fact that the Series was a fictional work does not insulate Netflix from liability for defamation if all the elements of defamation are otherwise present.”

It does not seem to me that all of the elements of defamation are ever so present in an avowedly fictional work. I understand that the Gaprindashvili, and that California court (at 11-14) in its opinion, obviously disagrees with my conclusion. I am going to talk it through anyway.