I sometimes get asked about the risks of putting the names of real people into books.
It’s something I have a lot of experience with because virtually all my published books use the names of real people. I’ve written a lot of historical non-fiction, and that’s all about real people who did real things.
Sometimes these people are the focus of the entire book – I’ve written full-length biographies of such New Zealand luminaries as Sir Donald McLean (1820-1877) (Man of Secrets, Penguin 2015) and Lieutenant-General Sir Bernard Freyberg, VC, DSO (3 Bars) etc (1889-1963) (Freyberg’s War, Penguin 2005), and that’s quite apart from referencing a heap of historic characters in every other history book I’ve written. All, of course, with endnotes.
The problem for non-fiction history writers is risk of damage on the back of saying anything that might run against received mythology, however well-founded the new view might be. I don’t mean damage to ego because the topic is debated, either. I had an instance, way back, where a cabal of enthusiast historians in Hawke’s Bay decided that feature articles I’d written about McLean required ‘avenging’ because I’d disputed the mythology.
Did this mean approaching me to discuss the abstract historical issues? Of course not. Their revenge involved several of them, all strangers to me, repeatedly publishing a malicious fantasy they had concocted about my personal and professional integrity in the ‘Letters to the Editor’ column of the local paper. That stopped when I pointed out the defamation to the editor. Alas, one of the group then directly approached my publishers and later my employers of the day with ‘warnings’ about me, using the same lie – a direct attack on my income. None of these people had the strength of character to introduce themselves to me.
Such are the risks of naming historical figures in non-fiction.
Naming living people, though, is another matter. If somebody named in a book objects to what is said about them, they may seek damages – and will get them, if you can’t prove what you said is factual. This includes proving what (to them) you implied, even unintentionally.
Now, I’m not a solicitor and you need to seek your own legal advice. However, to me, this last – unintentional defamation – is a particular risk when naming living people in your work. As I understand New Zealand law, defamation exists if the target of it (the plaintiff) considers that to be so. It is up to the defendant to prove otherwise. This may well be true internationally – I believe the New Zealand law is derived from British precedent where I believe the same can also happen. I recall a cautionary tale from a long-experienced journalist I knew, about a young cub reporter on a UK village rag who ran an innocent story about horse racing, featuring a photo – with caption – of a horse owner, his horse, and a woman nearby. The horse owner’s wife, who wasn’t in the picture, sued. She’d been defamed, she argued, because, by not identifying the other woman’s association with the man, the paper created the false impression that he was having an affair, thus reducing his wife’s status with her social circles. Guess what. She won.
One way around the problem is to approach the named person and have them authorise it. But even then there are risks – including publisher change to approved material. Or the named person might change their minds.
Fiction writers often end up using real people too, especially in historical fiction – one of my favourites is George McDonald Fraser, whose Flashman books are steeped in real people and events, some of them taking quite significant roles in the stories.
The same rules apply here. Historical figures need to be carefully researched, and if anything is said which runs against the received view of them, it needs to be explained. Fraser was a master at the method. As for living people – well, again, the issue of getting authorisation applies.
It all depends on how the real person reacts, and ultimately it’s a question of how much risk an author is prepared to take, versus any additional authenticity that a real living person might lend to their work. My personal view is that it’s not worth it in fiction writing. I’d sooner veer towards creating fictional names and characters, and creating that sense of authenticity by building a richer environment with other kinds of detail.
Copyright © Matthew Wright 2016