Legal
We took major solicitor advice before the publication of “MEN Speak the Unspeakable”; it would have been silly not to! They suggested the 18 Certificate and minor edits, including name and place name changes.
Summary of Report
We have been asked to advise on the content of the book "Menspeak". In reading the book we have taken into account issues of defamation, obscenity, trade marks, copyright and human rights.
One of the major considerations in our advice surrounding possible consequences of publishing the book has been the accessibility of the book to the general public, i.e. where it will be displayed and sold and to whom, since this is also a consideration that the authorities take into account. You have told us that the entire content of the book is true however that names of characters have all been changed to protect the privacy of the individuals concerned.
Relevant Areas
Decency
The book must comply with the Obscene Publications Act 1959.
Obscenity
Any material published will be found to be obscene if it tends to " deprave or corrupt a significant proportion of the persons likely to see it ". As such, you need to think about both the content of your book and where it is likely to appear. The first thing that is worth noting is that when deciding if a book is obscene the CPS or Court cannot look at an extract in isolation it must look at the book in its entirety. Therefore although one element may seem obscene if it is diluted by other less controversial elements of the book the overall impression of obscenity in the book will be reduced.
The best way to avoid the book being found to be obscene under the Obscene Publications Act 1959 is to avoid prosecution by the Crown Prosecution Service (the CPS).
The CPS guidelines on this issue state that prosecutions for obscenity are most likely where the material includes: sexual acts with children, sexual assaults upon children, portrayal of incest, buggery with an animal, rape, drug taking, flagellation, torture with instruments, bondage (especially where gags are used), dismemberment or graphic mutilation, cannibalism, activities involving perversion or degradation (such as drinking urine or smearing excreta on a person's body).
While your proposed book does not contain the majority of activities listed above, you need to note that the list is not exhaustive. Also for those that are included in your book you need to look at gravity and context.
The issue of obscenity is therefore more likely to restrict the opportunity for sale of the book through a high street shop.
The fact that your book is promoted as being entirely true will inevitably add to the shock value and therefore the risk associated with publishing such a text. Although much of the risk involves defamation which I will refer to later, this may also affect what the authorities would deem to be obscene (as a somewhat distant analogy whilst a film depicting murder is distasteful but accepted by many, a "snuff" movie would be absolutely intolerable even though the images in the film may be very similar to those within the fictional horror movie).
It is worth noting that although attempts have been made to define boundaries in relation to what is obscene, society's attitudes change on a gradual but regular basis as to what is acceptable or tolerable.
Defamation
For defamation to occur a statement must have been made that:
1) Is likely to lower the subject in the estimation of right thinking people or
2) Expose the subject to hatred, contempt or ridicule or
3) Cause the subject to be shunned or avoided.
It is, of course, very subjective as to what a "right thinking person" would find to be acceptable. Fortunately the test would be a right thinking person that would have access to your book thereby further limiting the parameters.
It is especially worth noting that a statement does not have to be untrue for it to be found to be defamatory.
There are several defences to defamation however two of them may apply to your situation.
a) Justification : if the statement is justified it may not be defamatory however the burden of proof would lie with you to show it was justified.
b) Consent to publication : where you have the consent of the subject in advance of publication this acts as a complete defence to defamation.
In the event that someone in the book does seek to pursue you for defamation:
- Libel actions are notoriously expensive and difficult to bring. There is no public funding available for defamation actions.
- Libel actions can take a long time to reach court (unless an injunction is applied for which in itself is very expensive). Will the aggrieved person still have the same appetite for a court trial two years after they first complained of defamation?
- A court action is a public affair and for someone who has been defamed on a limited scale to embark on a public high court action they may be attracting more public attention than the book itself.
- If someone did manage to take you to court over content in the book they can seek damages. Damages are limited (judges began to find high awards distasteful when they exceeded those being awarded in personal injury cases where actual physical injury had occurred).
- In awarding damages the actual or potential readership of a publication will be taken into account.
- Evidence of malice will increase an award for damages.
- It is rare that injunctions are awarded for the publication for a defamatory book however there is a risk however small that this may be on of the penalties of a successful defamation action.
Malicious Falsehood
In order for a successful malicious falsehood action to be brought the subject of the alleged falsehood must show:
1) The published words are false.
2) Those words have been published maliciously.
3) Financial damage has occurred as a result of the falsehood.
From what you have told me about the conception of the book such a claim is highly unlikely.
Human Rights Issues
There is effectively a fine balance to be considered between two specific articles of the Human Rights Convention. These two articles can affect the decision making process in a defamation case.
Article 8. The right to a private life : When most of the people referred to in your book entered into various activities written about it was likely that they did so expecting it to be private between the individuals concerned. Whilst you have taken precautions to conceal their identities should there be any way of revealing their true identity such privacy would be lost.
Article 10. Freedom of Speech : It is due to this article that many injunctions are refused in defamation cases.
Copyright
Where you have used the text belonging to a third party, even though you have offered credits for the source, it would be advisable to seek permission for the use of the text from the copyright owner. In the event that you infringe the copyright of a third party they maybe able to seek an injunction preventing further sale and publication of the book, delivery up of copies of the book containing the infringing extract, an account of profit or damages. What would be a likely conclusion in terms of damages would be a calculation of the sum that would have been due as a licence fee between a willing licensee and a willing licensor.
Trade Marks
You make occasional reference in the book to registered trade marks. Whilst for the most part these are not derogatory references due to the over riding themes of the books some trade mark owners may be disenchanted by the use of their brand name.
However such use of a trade mark does not always constitute trade mark infringement as you may not be using the marks in a trade mark sense, nor are you endeavouring to market your book using those trademarks to assist you.
For those reasons we will need a prominent disclaimer notice both at the beginning of the book and on the website.