Do Writers Have a Duty of Care?

This is inspired by a discussion on a subreddit dedicated to fan fiction, which I often interact with because their writing advice and discussions are actually far more professional and helpful than some of the supposedly ‘real’ writing forums. The question was about the morality of RPF. For those not fluent in the language of fan fiction, RPF stands for ‘real person fanfic’ or ‘real people fanfic’. It’s where authors take actual people, usually actors from their favourite shows or band members or singers or other celebrities and write stories using them as the characters. I have never written that sort of thing myself, but I know people who regularly write stories of that nature and who enjoy it. The discussion on Reddit wasn’t intended, according to the original poster, to start a fight over whether or not RPF was disgusting or if it should be allowed, as those types of arguments do tend to crop up a lot. It’s a pretty contentious subject. Me, personally, I have avoided reading anything of that sort because it feels a bit odd to me. It wasn’t something I’d ever really thought about though until I read that discussion. It made me think, ‘why am I uncomfortable about the idea of this?’

The first answer that sprang to mind was simply because these are real people. Fan fiction generally sticks to fiction (the clue’s in the name) and uses characters from TV, films, anime etc, but with RPF, it’s actual people who could, potentially, find that story online if it’s on a public site like Archive of Our Own. To me, it ties in with the boundaries between character and actor, or a celebrity’s public persona and their private life.

I go to a lot of sci fi conventions, or at least I did prior to covid-19, and it’s an issue that arises quite often there. I see, far too often, fans approaching actors and asking rude or invasive or just insensitive questions that you would never think of asking, say, your barber or your teacher. So why do people feel it’s okay to ask these sorts of things when it’s an actor? Just to give an example, I follow (or stalk, depending on your point of view) a particular actor who played a supporting role in a sci fi franchise and later went to on to be involved in the CW’s Arrowverse, so he does a lot of cons. At one in Birmingham, we had a ‘meet and greet’ session for about ten of us to go into a conference room with this actor and have a slightly more personal and informal Q and A. One fan said to this actor, ‘when you were in [series], you always looked really unkempt and your hair was terrible. Was that your decision or did the producers want you to look unattractive?’

Cue what my Norwegian friend Iri calls ‘second-hand embarrassment’ all round the table. The actor looked extremely uncomfortable and mumbled, ‘That’s just my hair, that’s just how I look.’

At another convention in Vancouver, BC, a fan approached one of the actors whilst he was on stage at his Q and A, and started asking him specific things about his children, calling them by name. The actor was visibly uncomfortable and replied, ‘Well, thanks for reminding me of my kids’ names,’ then asked her how she knew those details about him as they weren’t commonly spread around the internet.

In both these cases, I would never have dreamt of asking someone that sort of question because I’ve always seen the actors’ private lives as being out of bounds unless they make them part of their persona. What I mean by that is, for instance, one of the other actors in that same series has always mentioned his son in tweets and on Facebook, to the point where his interaction with his son is kind of his ‘act’, as it were. His son is now older and presents videos with him on Twitch and the likes. So were someone to come up to him at a convention and ask him how his son’s videos were doing, that, to me, isn’t the same thing as he’s made that public. On the other hand, the actor I know fairly well, the one I stalk, rarely mentions his family. The implication there is that he doesn’t want to bring that side of his life into contact with the ‘public’ persona’ and therefore I don’t ask about it. He’s in control. It’s up to him if he wants to share that information or not. It’s not my right to try and probe him for details simply because I enjoyed his performance in a few shows and films.

And that’s, I think, where the issue is. There are people who feel they have a proprietary right in these actors, singers etc because they watch their shows or listen to their music. But if you think about it, that would never be the case in any other instance where you’re the consumer of someone’s product. If I go down to the Co-op and buy a bottle of Irn Bru, that 90p that I’ve paid entitles me to drink that juice, or do whatever with the contents of that bottle. It doesn’t entitle me to go over to the Barr’s factory where the juice was made and demand to talk to the factory workers, to know their kids’ names or what they wear in bed (yes, I have heard someone ask that question of the actors at a con as well), or to take a selfie with them. As audience members, viewers of TV or film, listeners of music, we are consumers. The music, the show, the film, whatever it is is the product and the actors or musicians are the producers. They’re the people working in the factory to make the thing, not the thing itself. This does get a little confused at times, I think, when celebrities make themselves the brand, but it’s still a public persona, a character almost that they’re portraying.

Because at the end of the day, the ultimate issue with RPF or with behaviour at conventions is that these actors and musicians and celebrities are human beings. They have problems and issues and emotions and traumas and all the rest of it, just like us fans. I think a lot of people either don’t realise that or need reminding of it. But thinking of that, going back to the Reddit discussion, made me consider something else when it comes to RPF. The potential that sort of fiction has to do actual harm in the real world.

There are a lot of stories about celebrities finding fan fiction about themselves. Some of them laugh it off. Others openly don’t like it. I even heard a story once about some actor’s girlfriend leaving him because she read so much RPF about him and someone else he worked with that she actually thought there was something to it. Whether that actually happened or not, I can’t say, as it was just a story going around various discussion boards, but the fact is that it’s feasible that something like that could happen. As I mentioned before, these stories are public. A search for the celebrities name could well bring them up.

This idea of a story causing potential harm immediately brought to mind the idea of a duty of care, hence the title of this blog article. Duty of care is a legal term, used mainly in the area of delict in Scots law. The English and I believe the American equivalent of this area is tort law. Delict basically deals with the idea of damnum injuria datum or ‘a wrong wrongfully caused’, which is a concept originally from Roman Law. The idea is that you do something which may not in itself be illegal, but because you did it in an improper or unsafe way, you caused an injury, whether that be an actual physical injury or psychological harm, economic harm, loss of reputation, etc. Duty of care is basically the idea that you have an obligation to try and avoid causing harm to those around you. The concept was defined in Scots law in a fairly famous case called Donaghue v Stevenson in the thirties. The case actually involved a dead snail in a bottle of juice. Two ladies were in a cafe in Paisley and one ordered a ‘float’, which is ice cream with soda poured over it, which she was going to share with her friend. They poured some of the soda (ginger, according to the court records, which on the West Coast of Scotland means anything fizzy really) and ate some of the ice cream, but as they poured more soda out they began to find remnants of the snail in their dish. The friend, who hadn’t ordered the float, became ill with gastroenteritis, and later sued the manufacturers of the soda. However, their rebuttal was that as the friend hadn’t paid for the soda, she wasn’t a customer and there was no direct link between her and the manufacturer, therefore no duty of care was owed. The appeal court threw this out.

Lord Atkin: The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

So the idea was that there was no need for a direct contract or link between the pursuer and defender in the case. The manufacturer should have anticipated that his actions could affect others besides the person who purchased the bottle.

In terms of fan fiction, and especially RPF, I think this general principle applies. If you are writing a story that features a real person, and you intend to publish that story on a public forum that is available to anyone with an internet connection, then you should consider anyone who could reasonably be harmed by your actions. The chance of the celebrity seeing this story might be practically zero, but there is still a chance, and therefore they fall under the category of your ‘neighbour’ in this instance, as do their family and friends, who might also come across the story and could feasibly be harmed or upset by it.

I don’t mean that RPF writers will all be sued, although it is a dodgy area to get into. Defamation is another concept in Scots law that basically encompasses the English idea of libel and slander, but doesn’t make the distinction between written or spoken allegations. It’s another issue I think RPF writers need to consider. For the Scots law of defamation, the thing said or written has to be untrue and has to cause some detriment, some harm, to the person it’s said or written about. Again, if you’re putting stories on a public forum, it is feasible that the person depicted could see it. If it portrays the person or their friends or family or colleagues in a bad light, it could be argued that it’s potentially damaging to their reputation, should someone see it and not realise it’s fiction. I know of a story that caused a lot of controversy amongst the online communities because it portrayed a certain actor’s family as abusive (so that the author’s self-insert character could come and rescue and comfort him, of course) and this is apparently quite a common theme.

So my take on this is that common sense has to apply, and that authors, while free to write whatever they want, have a duty not to harm actual people by what they do, so if they choose to post publicly, to me, they have an obligation to consider what they’re writing and if it’s likely to be upsetting. Another common theme, apparently, is killing off a celebrity’s loved one in the story in order to make room for the self-insert character. I can’t imagine coming across a graphic description of someone I loved being killed. It certainly wouldn’t leave me in a very good mental state. The argument that it’s ‘only fiction’ I think doesn’t even merit discussion. As soon as you use real details of a celebrities’ personal life, I believe you have a duty of care, whether what you’re writing is obviously fictional or not. With the international nature of the internet, it may be that it’s not a legal duty if your country’s legal system handles tort differently, but it is still, I believe, a moral duty.

Moving on from that, though, I started to think about the likes of myself who write original fiction, and whether the same sort of duty applies to us. The difference is, of course, that fiction writers rarely use real people as characters, but it does happen. Bridget Jones’s Diary is an example, or you might cite something like the Netflix series ‘The Crown’ or ‘Hunters’. With living or recently deceased celebrities who have living relatives, it’s a bit easier to see the issue, I think. They’re around and they will feasibly see this product, this book or film or whatever. So, do writers then have a duty to ensure what they produce doesn’t cause any real world harm to those featured or their loved ones? I believe so, and there are numerous court cases on the subject, or instances where the families of celebrities featured in these films have expressed their grievances to the producers.

Where it’s a bit hazier though is in my line of work, historical fiction. I recently read someone on the same fan fiction subreddit describing a story featuring Napoleon Bonaparte as ‘RPF’, and it struck me as odd, as to me, real people fan fiction was always something that involved living celebrities, or at least ones that were only very recently deceased. But that raises the question, when does RPF give way to historical fiction? It’s kind of like that question, when does grave robbing become archaeology? Is there a point in time where people stop being considered real people because too much time has passed? That struck me as a very depressing notion.

There’s a good article I found on celadonbooks.com, which restates the rule I’d always heard regarding historical fiction, that it’s anything set fifty years or more in the past, that the idea is to set the story outwith the reader’s lifetime. So does that work for actual historical figures as well? If their story took place more than fifty years ago, are they fair game? Or should we, as writers, show them the same kind of respect and courtesy we should show to living people?

It’s an issue I’ve come up against in my own works, as both ‘The Murder of a Wretched Man’ (my historical crime WIP) and ‘The Casebooks of Dorian Dashwood’ (my historical urban fantasy WIP) feature real people from the periods in which they take place. In TMOAWM, it’s not such an issue as these people, in this case Victor Hugo and Eugene Vidocq, only appear very briefly so there’s no real scope to make them ‘out of character’ or to have them do anything that might be controversial. Dashwood is another matter.

Although I’m still working on the outline for Dashwood, it’s a concept I’ve been playing with for over ten years now. The general gist of it is your sort of Harry Potter style magical society that co-exists with ours but isn’t widely known about, although my stories take place in the late Victorian era. The stories take place in the same universe as Sherlock Holmes, who makes a few cameo appearances, and the idea is that Dashwood is kind of a rival, scoffing a little at Holmes’s disbelief in anything supernatural. I thought it might be fun to involve other characters from famous works of gothic fiction, assuming they were out of copyright of course, so I was toying with the idea of having Carnacki the ghost finder or such likes turn up. That is probably not going to happen now, but one of the characters I was originally intending to use was Count Magnus, from the M R James story of the same name. My concept is that magicians in this universe can live a long time, so there are characters who are from the sixteenth century, the eighteenth etc, and I thought it might be a cool idea to have James’s vampiric count play a role as one of the bad guys in the evil cabal Dashwood and co have to face.

The problem with this is, having re-read the story and done some research, Magnus de la Gardie, the character James used, was an actual historical figure, and nothing like the depiction in James’s story. He was an officer during the Thirty Years War, and a bit of a dandy by the sounds of it, but nothing like the vile, despicable character in the story. There are also still descendants of the de la Gardie family on the go in Sweden, or so I read.

So the idea of using Magnus as a villain just didn’t seem right to me any more. My compromise, I’m thinking, will be to create a character similar to Magnus but just make him entirely my own creation, and forget about tying in the James story altogether, because I just don’t feel right using Magnus’s characterisation of the man, when it’s so factually erroneous and actually insulting to the character of Magnus de la Gardie.

But then I think about Macbeth, and the fact that the Shakespeare play basically makes a villain out of a Scots king who was, by all contemporary accounts, well-liked, a good ruler and a pious, moralistic man. Someone on a writing forum recently said they were working on a fantasy series that took place ‘in the universe of Macbeth’, with the witches etc, taking it that Shakespeare’s version is real. So is that how we justify it? It’s an alternate universe, not meant to have any connection to the real person other than the name?

I honestly don’t know the answer to that one. It’s a strange question – when do people stop really being people and become ideas that people can adapt and customise? Will there be someone in a hundred years’ time writing ‘pandemic era’ stories about me or you? And should they be respectful to our memories if they do?