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Suppose there was a work of fiction where one of the characters was based on a real one. And suppose the real person sued the author and, through the process of discovery, found private emails, author's notes, etc., that confirm the claim.

But suppose that nobody other than the author and the real person connected the fictional character to the real person prior to the lawsuit, and it was the lawsuit itself that drew attention to the connection in public. Subsequently, the real person suffered damages, but had suffered none before his lawsuit. Can the defendant then use a "contributory negligence" defense, arguing that the damage was realized due to the actions of the plaintiff?

"Contributory" negligence or other contributions are a factor in other areas of the law. Is it a factor in libel?

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  • In what jurisdiction?
    – Nate Eldredge
    Jul 24, 2015 at 3:05
  • @NateEldredge: The U.S. Fixed.
    – Libra
    Jul 24, 2015 at 14:10

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A statement cannot be libel unless it actually identifies the plaintiff to defame him. The identification need not be by name, but it must be specific enough that the public would be able to determine who the statement referred to. You can read more about this concept at Prof. Eugene Volokh on Libel Law

Therefore, if nobody other than the plaintiff or defendant learned about the connection before the filing of the case or the publication of discovered emails, the original work of fiction was not a libel. And by telling everyone that the connection existed, yes, the plaintiff was impliedly consenting to any further alleged libel and it would be a defense from liability for the plaintiff.

Furthermore, there wouldn't be libel unless whatever the fictional character did was untrue (something the real plaintiff didn't do) and the public would think that whatever the character did was actually an assertion that the real plaintiff did it. I could write a satire about a President Brock O'Bama who is actually a lizardman in disguise, and that's my First Amendment right, not a slander of the President.

Disclaimer: only describing the common law and majority rules. State laws may differ.

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  • +1 There is also the public figure issue which raises the standard for liability, requiring malice on the part of the party spreading the libelous information. Arguably President Brock is a public figure. And slander is just speech; if it's written it's libel.
    – bib
    Jul 24, 2015 at 14:43

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