Q.   I heard about the libel lawsuit against “Law and Order.”  I thought fiction was exempt from defamation claims.  What gives?

A.   Making a libel-in-fiction claim in the U.S. (other countries may differ substantially) has historically been very difficult for several reasons.  First, the Supreme Court has ruled that an author or publisher can be liable for defamation only upon a showing of negligence.  Public figures have an even higher standard: they must show that the defamatory statement was published with “actual malice.”

Second, a plaintiff must prove the publisher of a defamatory statement knew or should have known that a “fictionalized” character was objectively identifiable as a real person − that the identities of the real and fictional characters are “so complete that the defamatory material” becomes a “plausible aspect” of the plaintiff’s “real life.”  And finally, truth IS a defense; therefore the plaintiff in a libel-in-fiction claim must show that something that is presented as fiction is not factually accurate!

In 2004, New York City attorney Ravi Batra filed a $15 million libel suit against the creators of “Law & Order” (including producer Dick Wolf and NBC Universal) for airing an episode depicting a bald Indian-American matrimonial attorney called “Ravi Patel,” who bribes a Brooklyn Supreme Court judge.  Mr. Batra alleged that the episode was based on a corruption scandal involving Justice Gerald Garson, matrimonial lawyer Paul Siminovsky, and Batra allegedly bribing a female Brooklyn Supreme Court justice.  Mr. Batra never was charged with any crime in the scandal.

When the suit was filed, NBC Universal issued a statement that “This episode, like all ‘Law & Order’ episodes, is fiction.”  The defendants then filed a motion to dismiss Batra’s lawsuit.  In a decision made public in March 2008, Acting Supreme Court Justice Marilyn Shafer denied the motion and ruled that the case could move forward. (Note that in New York state, the “Supreme Court” in this case actually is a trial court, not an appellate court).

In her opinion, Judge Shafer ruled that Batra was required to demonstrate that the alleged defamation is “of and concerning” him and that viewers were “totally convinced the episode in all aspects as far as the plaintiff is concerned is not fiction at all.” She added that no “libel-in-fiction claim has survived a summary motion in New York” for 25 years, and further that because of his involvement in the scandal, Batra was a “public figure.”

However, the judge specifically rejected the defendants’ claims that similarities between Batra and the fictional Patel were “abstract” because when the “Law and Order” episode aired, Batra “was one of only six attorneys practicing law in New York City with the first name ‘Ravi’ and that he resembled the character in terms of age and physical appearance, even though he is not a matrimonial attorney.”  On this basis, she allowed Batra’s lawsuit to go forward.

Surprising?  Very.  Keep in mind, however, that the decision does not mean that Batra will win the lawsuit, nor does this New York trial court decision necessarily set any precedent for other courts, either in New York or elsewhere.

© 2008 Daniel Steven