The call came early on the morning of April Fool’s Day 1992. ”Bad news,” said my editor. ”There’s a real Mr X and he’s going to sue.” The rest of the conversation passed in a flurry of pulse-heightening instructions to contact lawyers and swear affidavits.
Real Life, my second novel, had been published three weeks before. It had garnered a smattering of okay reviews and a complete stinker from a chap I was at college with. And yet the most savage monstering would have been as nothing compared with the events of the next few weeks and their introduction to the legal remedies available to people who believe that they have been unjustly maligned in print.
The distinctively named Mr X — blameless director of a West End media operation — had floated into my head and stuck there five years ago after a chance conversation at a party. His fictional projection, alas, was a porn baron, ex-associate of gangsters and creator of films such as Spank Academy. All this I might just have got away with. What seemed conclusive to Mr X’s legal team was that, having cheerfully appropriated his name, I had gone on to guess the number of his children, where he lived and several other salient details besides.
Even now, a decade and a half later, I can’t quite reconstruct the mental process that allowed Mr X to re-emerge, fictionalised and reimagined, as the anti-hero of a novel about the skin trade. Such was the fleeting nature of our contact that I’d actually misspelled his name. (Clear evidence of guilt, said the lawyers, diagnosing a ham-fisted cover-up.) For nearly a month, the legal nightmare ground on. Mr X’s lawyers began by alleging ”malicious libel”, an offence so grave, I learned, as to be almost imprisonable, but eventually allowed the possibility of ”innocent defamation”.
Smiles all round at publishers Chatto and Windus, but, as I soon discovered, admitting to ”innocent defamation” is an invitation to a free lunch. The novel was withdrawn, thereby extinguishing its sales prospects, and reissued with a half-page disclaimer informing purchasers that no relation to any living person was intended, especially not Mr X, which I thought merely compounded the insult. In the end, we settled out of court for a sum that, including costs, crept into the lower end of five figures.
Contractually bound to indemnify Chatto in such circumstances, I paid half of this. The publication advance, which rolled in a week or two later, was practically in pence.
Looking back on this disaster, I think I was an idiot and deserved everything I got. At the same time, it is unquestionably true that the British libel laws — or, rather, the way in which such laws are interpreted — are stacked against the writer.
Certainly the book trade has moved on from the climate of the 1930s, in which firms of crook lawyers would comb through new novels in the hope of making trouble; on the other hand, modern editorial sponsors will generally move heaven and earth to prevent a court case, however mild the pressure.
This routine timidity is much more alarming if you happen to be the kind of novelist who specialises in the contemporary world. A book set in the present day that examines — say — the landscapes of Westminster politics and the media is bound, by its very nature, to stray into territory that is more or less ”real”. Simultaneously, the clamour that invariably rises when a real person decides that he or she ”is” a character in a novel takes no account of the way in which the average creative imagination works, that characteristic novelist’s trick of building a vast edifice of fantasy on the flimsiest foundation of fact.
The wider point remains. With a few glaring exceptions, no writer consciously sits down with the aim of libelling anyone. Most defamation cases, consequently, are the result of a grotesque accident, something unnoticed slipping out from beneath the net.
Meanwhile, for any novelist professionally at large in contemporary society, there are three essential tips. First, any novel set among modern politics or the media will be automatically assumed to be libellous. Second, real people written about in fiction invariably find out about it in the end. Third, Evelyn Waugh’s defence — that you can say anything you like about anyone provided you make him attractive to women — no longer applies. — Â