I’M GONNA SUE YOU FOR THAT!

Photo Courtesy: Susie Holderfield

Robert Santoro, Esq. & Helen Dukhan, Esq.

Anyone can go to a local print shop and have business cards made calling themselves a literary agent. However, merely labeling oneself a literary agent is not going to assist one in selling books. Not by a long-shot. A literary agent must have the right connections and be part of the proper networks in order to generate business. Thus, an agent’s reputation in the publishing industry among other literary agents, publishing houses, editors and authors is the cornerstone to their success or failure.

Lately, certain literary agents have been waging battle against internet sites and other forms of mass media for publishing “allegedly” false information against them in order to ruin their reputation within the publishing industry. Dirty pool.

So, what can literary agents do to obtain recourse against someone publishing false statements against them? Seek legal justice in the courts of law in the form of a Defamation law suit.

One of the most publicized legal battles currently being waged in court is by Barbara Bauer, a literary agent, and her literary agency against several websites which she is suing for Defamation and for Tortuously Interfering with her Prospective Economic Advantage. Considering that we are discussing the pitfalls of being literary agents, we’ll rephrase Ms. Bauer’s allegations in plain English.

Ms. Bauer’s first allegation against the websites is for Defamation of Character, which when I consulted my “Black’s Law Dictionary,” is defined as any false communication, either written or spoken, that harms a person’s reputation. Falsely written statements are known as libel, and falsely spoken statements are called slander. The key thing to remember here is the importance of the word “false,” for truth is always a defense to a Defamation law suit.

For example, the websites in question published that Ms. Bauer is a “scammer” and a horrible literary agent. These statements have to be false, and the person making them has to know they are false and be doing so maliciously for them to be guilty of Defamation.

Ms. Bauer’s second allegation is for “Tortuous Interference with Prospective Economic Advantage” which are a lot of words that simply mean that a person maliciously and intentionally induced another person(s) (a prospective client for example) not to contract or engage in business with a third person.

Typically in cases such as these, the Court will balance the individual’s interest in their reputation against the public’s interest in the right to free speech, aka, the First Amendment to the Constitution.

It is important to note that the courts impose a different standard to private individuals as opposed to public figures. Consider the case of New York Times v. Sullivan. As a result of the ruling, a relatively well-known individual in the literary community or in the general public’s eye would not be afforded as much protection by the courts as a private citizen who has more of an expectation of privacy.

Also worth noting is that if Ms. Bauer can prove that all of the websites “acted in concert” to ruin her reputation and her prospective economic advantage, she could charge them with conspiracy. To do so, this charge would raise the level of consequences the websites face. If Ms. Bauer is successful in her case, she can obtain a public retraction of the statements, a public apology, money damages and counsel fees, the most common punishments for both crimes.

The outcome of any Defamation case and any Tortious Interference with Prospective Economic Advantage case depends on the value of the claimant’s reputation and how that relates to monetary gain or loss. Accordingly, Ms. Bauer will need to show that not only were the written words malicious and untrue, but also that they caused her a quantifiable loss of income. This is because the courts require a claimant to show actual pecuniary loss to be successful in a Defamation lawsuit. If such a rule were not in place, just think of all of the litigation that would emerge every time someone yelled, “Hey asshole, the line starts back here!”

Read More About the Barbara Bauer Case

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