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In his autobiography, Turning the Pages: An Insider's Story of Simon & Schuster, Schwed explained Iseman's reasoning. "Anybody who thinks he is likely to be in a book but doesn’t intend actually to read it is likely to scan the index to see if there are any references to him."
Amazon's Look Inside the Book feature, which allows potential customers to preview a book's content before making a purchase, has made Iseman's advice to omit the names of living individuals from the index a relic of a pre-internet age. Whereas, in the 1990s, you could still minimize the chances of getting sued for libel by omitting an index to your book, there's no hiding in today's digital world.
Rest in Peace? Libel Law and the Deceased
Under U.S. law, the dead cannot be defamed. However, a person's estate may continue to pursue a defamation claim filed before death.
Here are some strategies for minimizing legal risks when writing about the dead:
(a) Consider the Deceased's Family. While the dead cannot be defamed, be careful about making unsupportable accusations about the living—their family, friends, and associates. Unlike the dead, they can fight back.
(b) Utilize Disclaimers. A prominent disclaimer stating that your work is fiction or that certain elements are fictionalized may help deter claims by the living. Still, as explained below, it is not an impenetrable shield against defamation.
(c) Fictionalize. Changing names, locations, and certain details can help minimize claims. However, even if labeled as fiction, if someone closely resembles a real person in ways that make them identifiable to others, that person may have grounds to sue for libel.
(d) Truth. Truth is an absolute defense against defamation claims. If the statement can be proven true, it cannot be considered libelous, even if it harms someone's reputation.
The most foolproof strategy for minimizing libel claims is to wait for your literary prey to die. As the old saying goes, "He who laughs last laughs best. Revenge is best served cold at your publication party—preferably with a glass of Sauvignon Blanc, Riesling, or Gewürztraminer.*A handful of states as of this writing, including Colorado and Georgia, have criminal libel statutes that allow the dead, i.e., their estates, to sue for libel. In Colorado, any statement "tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred contempt or ridicule,” can get you into hot water if writing about a private individual. For more information about criminal libel, click here.
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