Vladimir Putin in Spy Fiction and Libel (Part III)

Over the past week I have reviewed Palace of Treason by Jason Matthews and put up a pair of posts about Vladimir Putin as he appears as a named character in the book. In this post I will discuss legal issues. If an author is inspired by a real life person, especially a living person, they will normally disguise the character created by the inspiration so that it is credible to claim they have created a fictional character. Writers considering the use of living real life people as characters should reflect carefully on the potential consequences.

The primary legal concern for an author is to avoid a claim of defamation. Libel is the written form of defamation. I will use the Wikipedia definition:

Under common law to constitute defamation, a claim must generally be false and have been made to someone other than the person defamed.

On proving libel in America Wikipedia continues:

There are several ways a person must go about proving that libel has taken place. For example, in the United States, the person must prove that the statement was false, caused harm, and was made without adequate research into the truthfulness of the statement. These steps are for an ordinary citizen. For a celebrity or a public official, the person must prove the first three steps and that the statement was made with the intent to do harm or with reckless disregard for the truth, which is usually specifically referred to as "proving malice".

At the blog, Rights of Writers, an American lawyer, Mark Fowler, provides tips to writers on avoiding defamation:

2.  If you model a negatively portrayed character after a real person, change as many identifying details as you reasonably can:  name, place of residence, age, physical description, personal background, occupation, relationships with other characters -- even the character's sex or ethnicity.

3.  Don't use a name for your villain that echoes or conjures up the name of a real person on whom the character is based, e.g., Donald Knight should not be renamed Ronald Day in your novel.

An article in The Telegraph sets out the perils in England of using a real life name:

Much the same thing happened to DJ Taylor when he published his second novel, Real Life, in 1991. For reasons Taylor is still at a loss to explain, he used the name of someone he’d met fleetingly five years earlier for one of his main characters – a man who happened to be a Soho porn baron, a former associate of the Kray Twins and the maker of films such as Nazi Death Camp and Spank Academy.

   Taylor had inadvertently given his character the same number of
   children as the real Mr X, and had him living in the same area of
   London. Nor did it help that he’d misspelled the man’s name –
   this was taken by his lawyers to be a ham-fisted attempt to cover
   his tracks. In the end Taylor and his publishers settled out of
   court for a sum “in the lower end of five figures”. Contractually
   bound to indemnify his publishers, Taylor ended up paying half
   of it himself.

   “The whole thing was incredibly traumatic,” he says now. “I
   realised just how serious it was when I got a call from my
   solicitor advising me to put any property I had into my wife’s
   name. What made it worse was that it was plainly an innocent
   mistake. But looking back, I think I was an idiot and deserved
   everything I got. At the same time it’s unquestionably true that
   the libel laws are stacked against the writer.”

I certainly appreciate libel laws are different between America and England. At the same time I expect Palace of Treason will be published in both nations.

Applying the above information to the Putin of Palace of Treason Matthews cannot argue the character is not patterned after the real life man. There was not the slightest attempt to disguise the character.  The Putin of the book is the President of Russia and his personal history and appearance are exactly the real life Putin.

Using Putin was not accidental or incidental. He is a significant character.

In the book he is portrayed as a murderous venal man. If the statements are not true how could they not be defamatory? What research and proof Matthews would have of the characterization would certainly be interesting.

Considering the nature of the portrayal of Putin as a villain I see harm caused the President.

In America the issue of malice would probably focus on whether there was a reckless disregard of the truth.

Matthews has totally ignored Fowler’s tips to writers.

For Matthews to rely on the disclaimer in the book that “any references” to “real people” are “used fictitiously” to defend his depiction is a perilous defence. The book makes Putin as “real” as possible.

Now would the President of Russia travel forth to sue in England or the United States and subject himself to the scrutiny of courts is a different question.

Some years ago in America there was an example of a public figure whose real name was used in a work of fiction and did not take action against the author.  Details are set out in an article, The Ethics of Fiction Writing by Ron Hansen, published by Santa Clara University:

Consider The Public Burning, Robert Coover’s imaginative retelling of the 1953 execution of Julius and Ethel Rosenberg following their federal conviction for supplying the Soviet Union with nuclear secrets. E. L. Doctorow had handled the Rosenberg material in his 1971 novel The Book of Daniel, but names were changed and Doctorow’s focus was on the fictionalized life consequences for the children of executed spies in the Cold War period. Whereas in Coover’s 1977 satire, the facts were often authentic, Time magazine and other news sources were quoted extensively in a sarcastic way, and a still-living historical eminence, the Watergate-stained ex-President Richard M. Nixon, was mocked by a fictional romance with Ethel Rosenberg and by a finale in which Nixon submits to anal sex with Uncle Sam. Calculating that the novel would collect significant review attention, the publisher of The Public Burning initially printed a stunning number of copies so books would be available even if there was a legal threat that halted print runs. But there was, in fact, no litigation. Coover’s portrayal of the ex-president, the Rosenbergs, and America in the fifties was manic and even cruel, but in the case of Richard Nixon the fictional narrative was so outrageous that no one could have believed the scenes authentic, and were a formal complaint actually made it would only have called more attention to a novel that Nixon and his friends wanted Americans to forget as quickly as they forget the tabloid headlines about aliens or Nostradamus at the supermarket checkout line.

This post is long enough already that I will not delve into the further potential legal issue of the appropriation of name and likeness because Matthews is using Putin’s name without consent to gain commercial benefit. Simon & Schuster on its website is already promoting Putin as a character.

Authors looking to capitalize on a living real life person as a character face the further risk of invasion of privacy.

I expect the lawyers for Simon & Schuster carefully considered the risks of publishing a book with the President of Russia as a villain. I will be watching in June when the book is published in North America to see whether there is any reaction from the Kremlin.  When the movie, The Interview, which mocked North Korean leader, Kim Jong-un, was about to be released there was loud complaining from that nation and threats against America but no lawsuit against the makers of the movie and the studio.

Those lawyers are braver souls than the English lawyers who advised Cambridge University Press on a non-fiction book involving Putin by Karen Dawisha that was not published by Cambridge University Press. An article in The Economist publishes a letter from the Press to the author explaining its decision. The following excerpt provides some of their reasoning: 

   We have no reason to doubt the veracity of what you say, but we
   believe the risk is high that those implicated in the premise of the
   book—that Putin has a close circle of criminal oligarchs at his
   disposal and has spent his career cultivating this circle—would be
   motivated to sue and could afford to do so.  Even if the Press was
   ultimately successful in defending such a lawsuit, the disruption
   and expense would be more than we could afford, given our
   charitable and academic mission.

   President Putin has never been convicted for the crimes or
   activities which are outlined in the book, and we cannot be sure
   that any of the other named individuals or organisations have
   either.  That the allegations may have been published elsewhere
   is no defence; re-publication of a libellous statement is still libel
   if it cannot be proven to be true.

I expect a dignified silence or lofty disdain from Putin.

****

Matthews, Jason - (2013) - Red Sparrow and Recipes and Menus in Spy Thrillers; (2015) - Palace of Treason and Vladimir Putin in Spy Fiction - Part I and Part II