Jonathan Heawood: Libel law's victims are stacking up

In The Bookseller of Kabul, the Norwegian journalist Åsne Seierstad charted the choppy life of an Afghan family during the spring of 2002, as foreign powers and internal armies fought over the future of their country. The book was based on the time she spent living with a bookseller and his two wives, a privileged witness to their domestic quarrels and desires as well as their more public existence. She focused on the subjugated place of the women of the family, and wrote about her own experiments inside a burka and how "in time I started to hate it". The book was an international bestseller, lauded for its "unique insight into another world" (Daily Mirror), for Seierstad's "curiosity and perceptive eye" ( Independent), for testifying to "the power of literature to withstand even the most repressive regime" (Daily Mail).

Yet, apparently, literature does not have the power to withstand the European law of libel. One of the bookseller's wives has sued Seierstad in the Norwegian courts and won 250,000 kroner (£26,276) for inaccuracy and breach of privacy. The bookseller himself, Shah Muhammad Rais, has spent his career defying the censorship of various Afghan regimes, but he too has inveighed against Seierstad's "low and salacious" book.

Seierstad has said that nothing went into the book that had not been approved by the family. She has offered to make financial amends for any distress caused, and even to write a follow-up book righting any wrongs. These offers have been refused because, Rais says, he wants the book to be "discredited in a court of law" for insulting the "honour" of the Afghan people. Other members of the family are preparing to bring their own cases and Seierstad is facing damages of up to £250,000 alongside mounting costs already estimated at £63,000.

Her lawyer is promising to appeal and the case may wind up at the European Court in Strasbourg. But there is no guarantee that the court will defend Seierstad's right to publish her own version of events. In recent cases, the court has attacked the public interest in free speech and the simple right of authors to describe the world as they find it. This growing trend may deter other authors from writing about real people, even in a fictional context.

What would it mean for literature if all characters based on real people were removed from the record? No Buck Mulligan in Ulysses; no Sarah in The End of the Affair; no Casaubon in Middlemarch; no Zelda in Tender is the Night; no Mrs Jellyby in Bleak House; no Anthony Blanche in Brideshead Revisited. Ottoline Morrell was cruelly satirised in both Aldous Huxley's Crome Yellow and DH Lawrence's Women in Love. Christopher Robin Milne hated living with the memory of his father's classic books about a little boy and his teddy bear. Real people are scooped up by writers all the time. Literature does not respect the boundary between public and private; in fact, it is all about overstepping that mark.

That's not to say that Seierstad has not broken an unwritten code of hospitality, or that the Rais family has not faced problems as a result of the book's publication. Although Rais himself continues to operate a successful business out of Kabul, his first wife has sought asylum in Canada and other members of the family are now living in Pakistan. But is this discrepancy in the fates of the male and female members of the family the fault of a Norwegian journalist – or Afghan society? Is it appropriate for a Norwegian court to punish the messenger? Is a court of law the place to determine how a book treats the "honour" of an entire society?

There is a world of difference between publishing a literary response and seeking punitive damages. The courts are notoriously inept at dealing with literature. As with Lady Chatterley's Lover, the problem with The Bookseller of Kabul is not what Seierstad meant by the book, but how other people (in particular the violently misogynistic elements in Afghan society) might respond to it. Would you want your wives and Taliban to read this? In an ideal world: yes. But as this disturbing judgment shows, we are living in a far from ideal world.

Jonathan Heawood is director of English PEN www.englishpen.org