Defamed in fiction

[Bramblethorn]

Interesting case here: Netflix's "The Queen's Gambit" is a fictional series about a fictional female chess player, Beth Harmon, playing against a male opponent. Along the way, a commentator contrasts Harmon to a real female player, Nona Gaprindashvili, implying that Harmon's achievements are greater because Gaprindashvili "never played against men". The real Gaprindashvili, who did play against men on many occasions, took exception and sued.

Netflix tried to argue that it was a work of fiction and therefore couldn't be defamatory, but a judge rejected that argument, holding that readers could reasonably have taken those remarks to be historical truth incorporated into fiction. After that, Netflix settled for an undisclosed amount.

I guess the message here is that if you incorporate real live people into a story, you need to be careful what you say about them; an "everything is fictional" disclaimer might not be a get-out-of-jail-free card if the story suggests otherwise.

 

[MillieDynamite]

Me thinks the commentator should have had someone correct his ass in the show. Ya betchya, boots!

 

[TadOverdon]

American court?

 

[SimonDoom]

American court?

Yes, the case was filed in the Central District of California federal court (that's the federal court district that encompasses Los Angeles).

The general principle is that it is possible to make actionable defamatory statements in fiction. You don't get a free pass just because it's fiction. The question is whether readers reasonably would have understood the statement to be a statement of fact and whether that statement was, in fact, defamatory.

The court did not rule that the statement was, in fact, defamatory. It merely ruled against the motion to dismiss the case, meaning the court left the case open for the plaintiff to prove that the statement was defamatory. The defendant didn't want to risk it, so the defendant settled.

Seems like a borderline case to me. The makers of the show made a false statement, but a false statement is not necessarily a defamatory one. It's certainly not "per se" defamation, like the statement "Joe Blow is a Nazi who advocates killing people." That's per se defamation.

If anything, it's potential defamation that requires the plaintiff to prove actual injury. What injury would there be? Gaprindashvili played in the early 60s, 60 years ago. What possible actual economic harm would there be as a consequence of this statement? Probably none.

Still, it was a really stupid thing to insert into the script. A show about a great woman's chess player should have done better.

By the way, if you haven't seen this series, it's wonderful. I recommend it to everyone, including non-chess players. The last four minutes make up one of my all-time favorite TV series endings.

 

[Bramblethorn]

Me thinks the commentator should have had someone correct his ass in the show. Ya betchya, boots!

That certainly would've been cheaper, but would've gone against what they were trying to do. As I understand it, they were trying to build up their fictional character as "the first woman to do this" so they chose to erase the RL woman who already had.

American court?

Yep.

 

[MillieDynamite]

Still, fiction can't defame the dead. So if you talk about real people, make sure they are dead. But don't murder them so you can defame them, that'll be wrong!

 

[Lovecraft_Lore]

Also kidnapping and non-con is not allowed. I think there was one or two other things not allowed.

'Kidnapped and sodomized by Emma Watson: a true story' might be a cool title but land you in hot water.

 

[lovecraft68]

Me thinks the commentator should have had someone correct his ass in the show. Ya betchya, boots!

That's solely on the writer who most likely won't be seeing anymore work in the near future.

 

[lovecraft68]

That certainly would've been cheaper, but would've gone against what they were trying to do. As I understand it, they were trying to build up their fictional character as "the first woman to do this" so they chose to erase the RL woman who already had.

This is the result of entertainments new version of a strong female lead, "The Mary Sue" the Mary Sue is a woman who isn't just strong, tough etc...but the bestest of the bestest who ever existed and everyone around them or before them gets denigrated or in this case never existed.

Beth was an awesome character and story, they didn't need to add that, and this is what happens when you get too cute.

Maybe someday playing it straight will get back in vogue.

 

[lovecraft68]

In the end this is why my characters are all made up. I do have one that resembles a certain briefly famous character from a shit series, but its loose and the average reader would most likely miss it. I do it to amuse myself because I guess someone has to.

 

[Bramblethorn]

I gave up on engaging in discussion with Simon some months ago, but I will just briefly note that several of the things confidently asserted in his post are directly contradicted by the actual judgement, which was linked from the article I shared.

 

[SimonDoom]

I gave up on engaging in discussion with Simon some months ago, but I will just briefly note that several of the things confidently asserted in his post are directly contradicted by the actual judgement, which was linked from the article I shared.

A few points:

1. It's not a judgment, it's an order. A judgment is a final disposition of a case. An order denying a motion to dismiss is interlocutory. It is not a final ruling. It's simply the judge saying to the plaintiff, "The allegations of your complaint are sufficient that if you are eventually able to produce evidence to support them then you may be able to prevail, so we're not going to dismiss and we're going to let you have your day in court." Nothing in the order constitutes a final and definitive ruling that the plaintiff is correct.

2. You're correct that I overstated that it's clearly not a case of defamation per se, because the judge thought it might be, but her ruling was not final or definitive, and would not preclude the defendant later from introducing argument or evidence that it was NOT defamation per se or that there was an absence of actual injury. Personally, I think it's a stretch to describe it as defamation per se and that if it proceeded to trial the defendant would have a good argument along those lines. I doubt Gaprindashvili would be able to show that she actually suffered any loss of income as a result of the statement, 60 years after she competed in chess. But obviously, I don't know for sure, and one never knows what an expert witness might be able to say or convince a jury to believe.

3. I'm struck by the gratuitous nastiness of your statement. We have disagreed on some things, but I have been consistently respectful and polite to you as a person and as an author. I would never say something like "I've given up on discussion with Bramblethorn." I've never done that with anyone and I think that's a completely wrong attitude to take, no matter how much I might disagree with someone. I'm reluctant to agree with Lovecraft, with whom I disagree often, but I think in some ways he's right: wokeness has infected this forum, and it makes people awful to other people. Your attitude reflected in this statement is awful. Shame on you.

 

[Haulover]

It was an excellent series. I watched it, and I read the book (which was also very good).

I don't remember if the book also made the claim about Gaprindashvili. If so, I imagine Netflix can sue the book's author..?

Either way - I think Gaprindashvili's case was frivolous - or opportunistic. Surely a public retraction and apology from Netflix would suffice? (Just my H O...)

 

[XerXesXu]

A few points:

1. It's not a judgment, it's an order. A judgment is a final disposition of a case. An order denying a motion to dismiss is interlocutory. It is not a final ruling. It's simply the judge saying to the plaintiff, "The allegations of your complaint are sufficient that if you are eventually able to produce evidence to support them then you may be able to prevail, so we're not going to dismiss and we're going to let you have your day in court." Nothing in the order constitutes a final and definitive ruling that the plaintiff is correct.

2. You're correct that I overstated that it's clearly not a case of defamation per se, because the judge thought it might be, but her ruling was not final or definitive, and would not preclude the defendant later from introducing argument or evidence that it was NOT defamation per se or that there was an absence of actual injury. Personally, I think it's a stretch to describe it as defamation per se and that if it proceeded to trial the defendant would have a good argument along those lines. I doubt Gaprindashvili would be able to show that she actually suffered any loss of income as a result of the statement, 60 years after she competed in chess. But obviously, I don't know for sure, and one never knows what an expert witness might be able to say or convince a jury to believe.

3. I'm struck by the gratuitous nastiness of your statement. We have disagreed on some things, but I have been consistently respectful and polite to you as a person and as an author. I would never say something like "I've given up on discussion with Bramblethorn." I've never done that with anyone and I think that's a completely wrong attitude to take, no matter how much I might disagree with someone. I'm reluctant to agree with Lovecraft, with whom I disagree often, but I think in some ways he's right: wokeness has infected this forum, and it makes people awful to other people. Your attitude reflected in this statement is awful. Shame on you.

Now, was her statement defamatory 'per se', and was your statement defamatory 'per se'.

 

[SimonDoom]

Now, was her statement defamatory 'per se', and was your statement defamatory 'per se'.

Neither. These are statements of opinion. She didn't say anything defamatory about me, and I didn't say anything defamatory about her.

For the record, I have a high regard for Bramblethorn's obvious intellect, and for her story-writing ability. But it's obvious that I've transgressed certain political boundaries that obligate her, in her mind, to cancel me. I think that's too bad, although it won't stop me from doing what I want to do here. But I'm going to call it for what it is, because I think we ARE in the grip of a kind of intellectual/ethical madness right now, and this is an example of that. I have never said anything to Bramblethorn that justifies the smug, self-righteous attitude "I'm just going to stop engaging with you." And I'm struck by the showy, self-satisfied need on her part to let everyone know that she's stopped having discussions with me, but by God she's going to post to let everyone know (in her opinion) I'm wrong about something.

Whatever. We'll just keep writing. Peace, everybody.

 

[Carnevil9]

Interesting case here: Netflix's "The Queen's Gambit" is a fictional series about a fictional female chess player, Beth Harmon, playing against a male opponent. Along the way, a commentator contrasts Harmon to a real female player, Nona Gaprindashvili, implying that Harmon's achievements are greater because Gaprindashvili "never played against men". The real Gaprindashvili, who did play against men on many occasions, took exception and sued...........

Is nobody bothered by the implicit sexism in this concept? That a woman who only plays against other women has not been challenged as much as one who plays against men?

I realize that is not what the thread is about, but I'm still surprised nobody has pointed that out.

 

[XerXesXu]

Neither. These are statements of opinion. She didn't say anything defamatory about me, and I didn't say anything defamatory about her.

For the record, I have a high regard for Bramblethorn's obvious intellect, and for her story-writing ability. But it's obvious that I've transgressed certain political boundaries that obligate her, in her mind, to cancel me. I think that's too bad, although it won't stop me from doing what I want to do here. But I'm going to call it for what it is, because I think we ARE in the grip of a kind of intellectual/ethical madness right now, and this is an example of that. I have never said anything to Bramblethorn that justifies the smug, self-righteous attitude "I'm just going to stop engaging with you." And I'm struck by the showy, self-satisfied need on her part to let everyone know that she's stopped having discussions with me, but by God she's going to post to let everyone know (in her opinion) I'm wrong about something.

Whatever. We'll just keep writing. Peace, everybody.

Hers was a statement of fact, innocuous enough, yours was a statement of opinion, but as a defence, you'd need to prove facts that supported your opinion. You implied that she's woke, and that woke is bad, and she's an awful person because of it. Probably not defamatory 'per se' in the current climate, but getting close. A little like the advice I first gave on 'He's a Communist', an allegation made by one small town politician against another (in UK) - you'll remember, "Are you now, or have you ever been, a member of the Communist Party?" - I advised, that was 'common and vulgar abuse', though it may have formerly been actionable 'per se' (in UK.)

The action in question was primarily for 'False Light', a tort developed in USA, and in the alternative for Defamation. False Light doesn't require proof of actual damage in the way that defamation does, it's concerned with injury to feelings not to reputation. The small sum compromised on, is consonant with hurt feelings.

Anything broadcast to the world is subject to every jurisdiction in the world. One can pick where one sues. You can't be sued for defaming the dead in England and Wales, you can in Scotland, which has a different legal system. A lot will always depend on the time and place of the litigation.

 

[TheRedChamber]

I don't remember if the book also made the claim about Gaprindashvili. If so, I imagine Netflix can sue the book's author..?

Either way - I think Gaprindashvili's case was frivolous - or opportunistic. Surely a public retraction and apology from Netflix would suffice? (Just my H O...)

According to the legal document Bramble linked to the novel said:

As far as they knew, [Harmon’s] level of play was roughly that
of Benny Watts, and men like Laev would not devote much time
to preparation for playing Benny. She was not an important
player by their standards; the only unusual thing about her was
her sex; and even that wasn’t unique in Russia. There was
Nona Gaprindashvili, not up to the level of this tournament,
but a player who had met all these Russian Grandmasters
many times before. Laev would be expecting an easy win

So it looks like the adaptation specifically changed this section to remove the fact that she'd played against men and this makes it look more deliberate buffing up of the fictional characers achievement than an accidental factual error, if I'm reading it correctly.

Is nobody bothered by the implicit sexism in this concept? That a woman who only plays against other women has not been challenged as much as one who plays against men?

I realize that is not what the thread is about, but I'm still surprised nobody has pointed that out.

The book/film is apparently about sexism, so one might expect anything said to be sexist anyway, but even then...the status of the male game would mean that there were far more professional chess players (and thus more grandmasters) and, if nothing else, the level of support and long history of male chess, would mean they had a significant advantage. Most of the best chessplayers were undoubtedly male and someone who had only faced (actually less than) half the field of opponents would be less than someone who had faced everyone.

(Incidently there's a on-going discussion in e-Sports about whether male reaction times are just biologicially statistically faster than women and whether that gives them an advantage equally as advantagous as things like muscle mass in physical sports, but that's a whole other dangerous can of worms).

 

[stickygirl]

But soft! What false light from yon window breaks?
It is per se and wokery is not fun
Arise per se and kill the actionable suit
Who is already sick and pale with guilt
That thou, unpaid, art far more wrong than thee...

Macaroons anyone and there's a Victoria sponge that Jenny brought? The kettle's just on the boil and then we can see what everyone's been knitting this last week. The vicar apologises he can't be here, but he's still helping the police with their inquiries.

 

[PennameWombat]

Not going to comment on the Queen’s Gambit case, I’ve not read up on it and not particularly fussed to do so right now. But this thread did bang up against one of the few still-functioning brain cells I have left, about an article I’d read some time ago.

And… I found it. It’s from 2010, but it confirms the notion that an author can be sued for a defamatory profile in a fictional work and they can lose.

https://www.dmlp.org/blog/2010/when-art-imitates-life-suing-defamation-fiction

In November of that year [2009], a Georgia jury returned a $100,000 verdict for plaintiff Vickie Stewart, finding that a character in The Red Hat Club, the 2003 New York Times best-selling novel by Haywood Smith, had been based on Stewart's life and inspired by Stewart's involvement with the Red Hat Society (a real-life organization of women over 50 who dress in red hats and purple clothes and get together with the goal of celebrating and enjoying life to the fullest). The case went to the jury on claims of defamation and publication of private facts (though the jury ultimately rejected the publication of private facts claim) because the Judge found over two dozen specific similarities between the lives of the plaintiff, who had known the novel's author for over 50 years, and the character "SuSu," a middle-aged flight attendant who figures prominently in the book.

More discussion here: https://www.freedomforuminstitute.o...ts-first-amendment-overview/libel-in-fiction/

And this isn’t the article I once had around disclaimers, but as this says, they probably won’t hurt but they’re not going to guarantee anything. This article has additional good links on this subject.

http://www.rightsofwriters.com/2010/12/could-i-be-liable-for-libel-in-fiction.html

 

[shakna]

Still, fiction can't defame the dead. So if you talk about real people, make sure they are dead. But don't murder them so you can defame them, that'll be wrong!

That's not true! An estate can absolutely sue for defamation!
Defamation laws differ wildly, from place to place. In Montana, defamation actions can survive the party becoming deceased. There's a lot of technical hurdles, but it can happen.

Thankfully, most places in the world put a limit on how long can pass since something was said/written, and when you can file for defamation. The general average being about a year. So if they don't notice in a year, then you tend to be safe. But again... Defamation laws are crazy different, from place to place.

 

[TadOverdon]

Judges make bad rulings every day. Sometimes they're overturned.

IMHO this is a bad ruling.

But Starbucks won't offer me a discount on a flat white because I posted this online.

 

[Bramblethorn]

A few points:

1. It's not a judgment, it's an order.

You are correct, I used the wrong term there, mea culpa. I don't believe anything else I've said here is dependent on that distinction though.

2. You're correct that I overstated that it's clearly not a case of defamation per se, because the judge thought it might be, but her ruling was not final or definitive, and would not preclude the defendant later from introducing argument or evidence that it was NOT defamation per se or that there was an absence of actual injury. Personally, I think it's a stretch to describe it as defamation per se and that if it proceeded to trial the defendant would have a good argument along those lines. I doubt Gaprindashvili would be able to show that she actually suffered any loss of income as a result of the statement,

As the order explains, she doesn't need to.

60 years after she competed in chess.

This is the same kind of technically true, but deeply misleading, if I were to describe our present as "45 years after Meryl Streep acted in a movie".

As the order explains, chess has been a life-long career in which she is still active, and that's relevant to the case.

3. I'm struck by the gratuitous nastiness of your statement. We have disagreed on some things, but I have been consistently respectful and polite to you as a person and as an author.

I know you believe yourself to be "polite" and "respectful". That is not an opinion I share. To me:

"Respect" includes making an effort not to drown out truth with misinformation, in particular by checking my "facts" before I broadcast them. That one in particular is something I've called you on several times before, and it's what I was calling you on here.

"Respect" means acknowledging other people's stated boundaries. When somebody says that they are not going to help you to find a thing and told you why not, the "respectful" response does not involve immediately jumping into their PMs with a "can you help me find the thing?" (Happy to provide a screenshot if you don't recall the PM.)

"Respect" means not being This Guy (two following paragraphs cropped, not relevant here):



"Respect" means that when you apologise for doing something shitty, you follow up by doing whatever you said you were going to do. (Didn't happen.)

For a long time I did extend you the kind of civility that you value. Eventually, through those and other interactions, I came to see you had no interest in reciprocating with the kind of civility that I value.

If somebody's being obnoxious, and telling them so gently doesn't get through, then yes, I am eventually going to explore other options. You can call that "nastiness" if you like, but it's not gratuitous nastiness.

wokeness has infected this forum, and it makes people awful to other people. Your attitude reflected in this statement is awful. Shame on you.

I know "wokeness" is a popular deflection, but it seems an odd one here. There's nothing very political in your first post here, nor in my response. My harshness to you was simply because you were doing the same disrespectful thing that I've called you on several times before: carelessly posting misinformation. If you're surprised by that reaction now, it's only because you didn't listen before.

I'll also note that in doing this, you're repeating the same misrepresentation you apologised for just a few months ago.

For the record, I have a high regard for Bramblethorn's obvious intellect, and for her story-writing ability. But it's obvious that I've transgressed certain political boundaries that obligate her, in her mind, to cancel me.

When somebody repeatedly tells me that they have a problem with a thing that I keep doing, I try to entertain the possibility that they're telling the truth about it being a problem.

If I keep on doing that thing and they respond harshly, I try to entertain the possibility that maybe the reason they're made with me is because I kept on doing the same fucking thing that they already told me was a problem, rather than trying to make it about my own hurt feelings or "cancel culture".

I think that's too bad, although it won't stop me from doing what I want to do here.

Thank you for a concise demonstration of what it means to be "cancelled".

But I'm going to call it for what it is, because I think we ARE in the grip of a kind of intellectual/ethical madness right now, and this is an example of that.

Not really, no.

I mean, our world might be in the grip of all that, but as far as this interaction goes you're overthinking it. All that's happened here is that somebody thinks you're a bit tiresome in a Dunning-Kruger sort of way, and not as "respectful" as you think yourself to be, and has decided they have better things to do with their time.

Yes, some of those issues have previously emerged in political discussions; yes, that political context may have accelerated my loss of patience. But even if we'd never gotten into political topics, I'd still have reached the same decision eventually.

I realise that's not as palatable an explanation as the idea that you're a blameless victim of some grand political phenomenon, but it is what it is.

I have never said anything to Bramblethorn that justifies the smug, self-righteous attitude "I'm just going to stop engaging with you." And I'm struck by the showy, self-satisfied need on her part to let everyone know that she's stopped having discussions with me, but by God she's going to post to let everyone know (in her opinion) I'm wrong about something.

(1) The important opinion here is not mine, but that of a senior judge who directly refuted those assertions several months before you made them. The kind of hubris that minimises this as "her opinion" is further example of that whole lack of respect; not all opinions are equal.

(2) I actually stopped responding to you three months ago, with no announcement whatsoever. Perhaps I should have just kept on with that.

But I suffer from the inconvenient belief that posting untruths is bad and should be checked. Sometimes that tempts me to engage when I might do better to let bullshit pass.

I figured that if I just left it at "Simon is wrong, see the judgement" people might wonder why I was being so uncharacteristically terse. I clarified for their sake; you weren't the target audience and it didn't occur to me to think what your reaction might be. In hindsight, perhaps an error, but it's done now.

And now, I'm going to do something more interesting with my time.

 

[Bramblethorn]

It was an excellent series. I watched it, and I read the book (which was also very good).

I don't remember if the book also made the claim about Gaprindashvili. If so, I imagine Netflix can sue the book's author..?

No. As discussed in the judge's opinion, the novel referred to her as "a player who had met all these Russian Grandmasters many times before". That change was important to the ruling since it established the "actual malice" requirement.

 

[Bubo_bubo]

Still, fiction can't defame the dead. So if you talk about real people, make sure they are dead. But don't murder them so you can defame them, that'll be wrong!

But how do I make sure they're dead if I can't kill them?
...
....
.....
OH. I see! I have someone else kill them!