Article by Nicola Solomon published in The Author of Autumn 1996. Leading literary lawyer Nicola Solomon, a Deputy District Judge and Partner of Finers Stephens Innocent (179 Great Portland Street, London W1W 5LS, tel. 020-7344-7652) has kindly given AKME permission to reproduce this article. She can be e-mailed at nsolomon@fsilaw.co.uk.
The article is reproduced without any comment or editing by AKME.
With a happy sigh you send back the proofs of your new handbook Men and the Art of Motorcycle Maintenance, assuming you will never have to think about it again. However, six months after it is published, you receive a letter from a firm of solicitors. Their client followed the instructions set out in your book, his bike crashed and he is claiming damages for personal injures. Your publishers are pointing at the indemnity you signed stating that your book would contain nothing dangerous, and are looking to you to pay up. Are you liable?
Surprisingly, in English law the matter is not clear. There are various ways in which a reader could make a claim against you for damage caused by following advice in your book. The most likely is the common law of negligence. Others include statute law, contract, and breach of statutory duty. Liability would vary depending on whether your work caused physical or merely economic damage.
Physical damage
You have a duty of care not to make false statements which result in physical harm. The reader would have to show that you had been negligent by not taking proper care when writing your work. You would not be negligent if you had relied on a proper source which later turned out to be incorrect, or if you had made a simple mistake despite excellent checking procedures. The reader would also have to show that it was reasonable to rely on your statement. A couple in the US are planning to sue the makers of the cult film Natural Born Killers claiming the film led to the copycat murder of their son. Courts here would be bound to hold that the film was fiction and was not intended to be followed, however much it glorified violence, and that the parents could not succeed against the makers of the film.
However, a serious instruction manual or how-to book written negligently could well give rise to liability. A doctor writing a medical textbook would be entitled to assume that the reader had a large amount of relevant skill and knowledge and would not rely entirely on the book, but a court is very likely to decide that a home motor cycle manual - or even a cookery book - was intended to be authoritative. It is therefore important, if you are writing books that could lead to physical injury, that you make it entirely clear whether your book should be followed or whether you are suggesting that the reader should take other professional advice.
Finally, the reader would have to show that he or she did rely on your book, and that the reliance caused the damage. In the case of the motor cycle accident it would not be enough to show that the motor cycle had crashed; the plaintiff would also have to show that he/she had followed the instructions in your book correctly and that it was because of a mistake in your book (putting the screw in backwards) that the machine failed and the crash took place.
Product liability
The Consumer Protection Act 1987 provides strict liability (i.e. there is no need to prove negligence) against manufacturers for personal injury caused by a faulty product. The definition of product can extend to instructions or packaging, but a book would probably not be considered a product. The damage has to be caused by the product, and this is unlikely to apply to a book unless it fell on the reader's head. The only types of book that might be at risk under this act are instruction manuals sold and packaged with the product, e.g. instructions with a new toaster that suggested that the best way of cleaning it was by inserting a knife when it was plugged in.
Economic loss
The circumstances in which a reader can claim against an author for purely financial loss are far more limited: courts are very wary of creating financial responsibility to a large and indefinable class unknown to the author. This is an area where there has been litigation, mainly about auditors who write company reports on which purchasers or shareholders rely. The courts have held that it must be reasonably foreseeable by the author that the statement will be relied on by the particular reader or readers of a particular class in a particular way. An author will not be held liable where a statement is put into more or less general circulation and may foreseeably be relied upon by strangers to the author for any one of a variety of different purposes which the author had no specific reason to anticipate. This has meant that cases have not previously been taken against book authors, although there may be a risk if you are writing for a small audience whose needs you know and who are unlikely to seek advice elsewhere.
There is a risk of being found liable in electronic publishing with on-line services designed for a particular customer. The trend in electronic publishing seems to be towards tailor-made advice and information. There will be a very close relationship between the writer or publisher and the reader. The author will have a good idea of what the information is being used for and how the reader intends to use it. In these circumstances we may see claims for economic loss arising from wrong advice given to end users.
Obsolescence
An author would probably not be at risk if instructions were followed in an old book that had become out-of-date: the date of publication would put a reader on notice of the date when the information was accurate. How long a book could reasonably be expected to be up-to-date would vary; perhaps less than a year if giving advice in an area such as cot deaths. If there are major developments soon after the book's publication, the author should draw this to the publisher's attention, and the publisher would be well advised to issue an erratum slip or, in extreme cases, to withdraw the book.
Disclaimers
Even a slight risk of being sued must make authors consider inserting a disclaimer in their work advising readers not to rely on it. However, such a disclaimer is unattractive for various reasons. If you are writing a book that you intend to be authoritative, you hardly want to tell readers that they will have to check your information elsewhere. The very presence of a disclaimer may make a court think that you are anticipating that readers will rely on your book, and that you therefore should have been extra careful in checking every fact when writing it; i.e. it will help to prove negligence. It is no good putting a disclaimer in tiny writing, as a court will want to know whether it was brought to the reader's attention. Finally the Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contract Regulations 1994 state that one is not entitled to exclude liability for death or personal injury, and that disclaimers given in the course of one's business are limited to those which are reasonable and fair.
Contract law
In order to be liable to a reader under contract law there must be a direct relationship with him/her. Normally the person who has that relationship is the bookseller, but obviously with direct distribution and, again, on-line services, it is becoming more common for a publisher to have a direct relationship with a reader, and therefore to be liable in contract. This could have an effect on you, because your contract with the publisher is likely to make you liable under an indemnity. It is probably an implied term of the contract that the publisher will have taken reasonable care in producing the book so that it doesn't hurt someone physically, but it is doubtful how far the duty would be imposed with regard to the accuracy of the contents of the book. The publisher certainly must exercise reasonable care in checking the book and making representations about it in the catalogue and the blurb. The author has to take reasonable care in relation to its contents.
Misrepresentation Act 1967
If a reader enters into a contract after misrepresentation by another party, and suffers loss, there could be liability if the representation was made carelessly. This would apply particularly to direct sales by publishers who wrote a blurb which misrepresented a book's contents. There is no need to prove a duty of care, and the publisher would be responsible for all the reader's losses, including incidental losses, not just those which could have been foreseen.
How, then, can you avoid claims?
Publishers will often deal with litigation and bear the costs, but your publishing agreement will contain indemnities. You should ensure that these are as limited as possible, in line with the advice given in the Society's Quick Guide to Publishing Contracts. If you don't intend your book to be relied on, or mean it only to be used in addition to professional advice, then make this clear. Most important, try to get it right, and make sure you check your work properly. If you are writing books on which someone is likely to rely, and you are representing yourself as an expert, then it is important for your reputation as well as for their safety that the book is correct. At the very least, your credibility and your relationship with your publisher could be seriously damaged. Everyone hates fact-checking and proofreading - it is the least glamorous part of book writing. But it is absolutely necessary; particularly if you write books like A Field Guide to Edible Fungi.
Click to return to the top of this file. Return to AKME's Law Library index. Return to The Remedy + options. Return to The History of AKME.
e-mail: akme@btinternet.com