Skip to content

Smith, et al. v. Stewart

A Georgia trial court denied the defendant author and publisher’s motion for summary judgment on the plaintiff’s defamation claim, and the Georgia Court of Appeals affirmed.

The author, Haywood Smith, wrote a bestselling novel called The Red Hat Club about five women living in Atlanta. The author admitted that she had used some information about the plaintiff, who was a childhood friend of the author, to create one of the characters, including the death of the plaintiff’s first husband, the subsequent insurance payment, a second marriage to someone who stole the insurance money, moved to Florida and transferred his assets to a mistress, the plaintiff’s attempt to locate her second husband by advertising a reward for information about him in a Florida newspaper, and her decision at age fifty to become a flight attendant. The author also claimed that she made up many other attributes of the character including that she is an alcoholic who drinks on the job, is sexually promiscuous, is foul-mouthed, insensitive, ill-mannered, a right-wing reactionary and a loose canon with a bad temper.

The trial court had found that despite the book being labeled a work of fiction, the many specific similarities between the plaintiff and the character in the book, the numerous references to actual people and places and the nature of the allegedly defamatory statements created jury questions as to whether the book contained false and defamatory statements concerning the plaintiff, and the appeals court agreed. Addressing the first element of a defamation claim, whether the publication could be found to be “a false and defamatory statement concerning the plaintiff,” the appeals court stated that the test is “whether persons who knew or knew of plaintiff could reasonably have understood that the fictional character was a portrayal of the plaintiff,” and it is not an issue of what all the world understands. In addressing whether the excerpts from the book could reasonably be understood to be stating actual facts about the plaintiff when it was a work of fiction, the appeals court noted that the test for libel is not whether the story is characterized as fiction or not, but whether the portions, in context, could be reasonably understood as describing actual facts about the plaintiff.

The appeals court then went on to address the defendants’ claim that they were entitled to summary judgment on the plaintiff’s defamation claim because she did not plead or present evidence of special damages, finding that extrinsic evidence was not required because passages of the book related to alcohol abuse and sexual promiscuity were defamatory per se.

The appeals court also affirmed denial of summary judgment on the plaintiff’s claim of negligence, finding that a jury issue exists as to whether the publisher, who was aware of the plaintiff’s allegations of defamation before the book was issued in paperback, exercised ordinary care by undertaking reasonable steps to protect a private person from defamatory statements. However, the court dismissed the claim of negligence against the companies who published the book in audio and large print format because they did not have actual knowledge of the plaintiff or her allegations about the book.

The plaintiff’s complaint also included claims of false light invasion of privacy, public disclosure of private facts, negligent infliction of emotional distress and intentional infliction of emotional distress. The defendants argued that the plaintiff simply recast her defamation claim as public disclosure of private facts claim, but the appeals court disagreed, noting that the elements for the tort of public disclosure of private facts differ from the elements required to prove a defamation claim. However the court did dismiss the claim of false light invasion of privacy because it is encompassed in the defamation claim, and the court dismissed the plaintiff’s claims for negligent and intentional infliction of emotional distress because there is no evidence of physical injury resulting from the defendants' alleged negligence and no evidence that the defendants’ actions in writing and publishing the work were directed at the plaintiff.