Every writer, whether tackling fiction or nonfiction, uses real people. Whether our main character shares our father’s love of puns or we are naming names in a tell-all about an ex-lover, real people populate our work. Is this safe, legal? Can we be sued for defamation by everyone who recognizes themselves in our work?
The good news is libel and invasion of privacy suits are rare, particularly involving fictional works. Claims are difficult and expensive to prove. Most targets don’t want to call attention to a matter best forgotten. Typically, lawsuits occur only when big egos and deep pockets are involved.
It can’t hurt, however, for writers to be aware of the risks. I outline the basics below. My goal is not to tell you to take no risk, but to urge you to be smart about them. Take the risks that are important to your narrative arc and minimize those that are not.
What Is Safe
- You may write about a person in a positive or neutral light without risk. You don’t need permission to thank someone in your acknowledgments or to say the name of your fifth-grade teacher.
- You may use historical names. If you are writing a memoir about the summer of 1969, you may mention Neil Armstrong and the moon landing or talk about your crush on Cat Stevens or Grace Slick.
- You may speak ill of the dead. Claims of defamation and privacy die with a person.
When to Worry?
When you are publishing information about an identifiable, living person, and that information could damage the person’s reputation or subject him or her to public hatred and scorn, then you need to consider the risks of defamation and invasion of privacy. I am not talking about portraying your mother-in-law as bossy; I am talking about portraying your mother-in-law as a drug dealer.
Another legal claim is the misappropriation of the Right of Publicity, namely using someone’s likeness or life story for advertising, promotional, or commercial purposes. I’ll cover that topic in a later post.
The following information summarizes United States law. The laws of other countries may be more favorable to the targets of defamatory statements.
To prove defamation, libel for written statements or slander for spoken ones, a plaintiff (the “target”) must prove the following:
False Statement of Fact
If a statement is true, then it is not defamatory no matter how offensive or embarrassing (although the writer may have violated the target’s right of privacy, as I discuss below).
A defamatory statement must be seen as a statement of fact, not an opinion. Opinions are not defamatory, even if they are nasty. To determine if a statement is an opinion or a fact, courts ask if the statement can be proven objectively. For instance, a tweeter was sued for calling someone crazy and won because whether someone is crazy can’t really be proven or disproven. However, a restaurant critic was sued for saying a steak tasted like horsemeat. The plaintiff claimed horsemeat was a statement of fact and not a colorfully-stated opinion.
Satire and hyperbole are not defamatory as long as the absurdity is clear. That’s how publications such as The Onion and MAD magazine get away with what they print. Entertainers like Rush Limbaugh rely on hyperbole. Their statements, while vicious, are so extreme the courts assume the average reader and listener does not believe them to be true.
Identifiable, Living Person or Company
A defamatory statement must contain sufficient information that would enable a reasonable person (other than the target) to identify the target.
For example, Andrew Greene has sued Paramount Pictures for $25 million claiming he was defamed by the character Rugrat Kiskoff in the movie The Wolf of Wall Street. Greene claims he is identifiable because Rugrat, like Greene, wears a toupee. In fact, Greene seems particularly offended that the toupee is “mocked in an egregiously offensive manner.”
Frankly, the producers were asking for trouble by using something as distinctive as a toupee. But a toupee, particularly a bad one, must have been too funny to resist.
Typically, the target must be a living person, but companies have sued for defamation, particularly when the damaging statement is about food. Many states have passed “Ag-Gag laws” to protect local farming interests. Oprah Winfrey was sued by a group of Texas ranchers after saying she had sworn off hamburgers because of mad cow disease. (Oprah won the case.)
Publication or Dissemination
If one person (other than the target) reads or hears a defamatory statement, that is sufficient to support a lawsuit. Nowadays, a single tweet can be heard around the world, so proving publication is easy.
The false statement must be more than offensive, insulting, or inflammatory. The statement must “tend to bring the subject into public hatred, ridicule, contempt, or negatively affect the business or occupation of the subject.” Certain statements are assumed to cause harm, including statements attributing someone with dishonesty, criminal conduct, association with disfavored groups such as drug cartels, a physical or mental disease or disability, sexual promiscuity or perversion, impotence, or professional incompetence.
You never know what some people consider harmful. Donald Trump sued a publisher for underestimating his wealth.
Actual Malice for Public Figures
If the target is a public official or a public figure, and the statement relates to the area in which he or she is in the public eye, then the target must prove the statement was made with actual knowledge that it was false or with a reckless disregard for the truth. The standard is high; the defendant/writer must have had a reasonable basis to know the statements were false.
Negligence (Non-public Figures)
Historically, if you made a defamatory statement against a private individual, you would have liability even if you took reasonable precautions. In recent years, courts are requiring some measure of fault or negligence on the part of the defendant. For this reason, keep good records of your sources in case you ever have to provide evidence that you took reasonable efforts to verify your statements.
Don’t try to hide behind attributing false statements to someone else or using fudge words like “it has been reported that . . .” You could still be liable for repeating the defamatory statement if it was unreasonable for you to rely on the source. Fact check. You could be held liable for repeating a defamatory statement.
Some people try to avoid liability by posting defamatory statements anonymously. With enough money and technology, they are typically found out.
Invasion of Privacy
Even if you publish the truth, you may still be sued for the unauthorized disclosure of private information. Again, these cases are difficult to prove, but since they usually involve allegations of criminality, infidelity, promiscuity, paternity, or idiocy, emotions are explosive.
A target needs to prove the following:
For information must not be widely known. Any incident that occurs in public is not private, especially now that everyone carries a Smartphone. Information in court documents and news reports is also not private, although there have been cases where decades-old criminal history has been considered private. If your target was convicted of a crime as a teenager but has gone on to live a law-abiding, respectable life, disclosing the earlier crime may lead to a lawsuit.
What about family secrets? Every family has topics that are not discussed, but that does not necessarily mean the information is private. No one may speak about your cousin’s drinking, but if your cousin has a criminal (and public) record of DUIs, the information is not private.
Identifiable, Living Person
The disclosure must be about someone reasonably recognizable. It is not enough that the person recognizes himself; other people must be able to identify the person
Like defamation, the right to privacy dies with the person. However, you should consider whether surviving family and friends might still be harmed by the release of the information.
The disclosure must be more than embarrassing; it must harm a person’s personal and professional reputation. Typically, these cases involve incest, rape, abuse, or a serious disease or impairment. Sex videos have triggered a number of privacy suits.
Not of Public Interest
This is a huge loophole that favors writers. Even if the information is offensive, courts often decide there is no legal liability because the information is of public interest. Public interest does not mean high brow or intellectual. Gossip, smut, and just about anything about celebrities or politicians is of public interest. The fact that a traditional publisher decides to print the material is enough to demonstrate public interest. If a blog post goes viral, that is evidence of public interest.Intrusive fact gathering will also get you into trouble. If you gather private information by hacking, wiretapping, or climbing trees to see into someone’s back yard, you could get sued.
Another flavor of invasion of privacy is called false light. Suppose you post a photo of a criminal arrest. Jane Doe, a bystander, appears in the picture. However, if the photo creates the impression that Jane was arrested and you do not take reasonable measures to dispel that impression, Jane could sue you for portraying her in a false light.
Tips for Avoiding Defamation Risks
- Don’t use labels such as crook, cheat, pervert, or corrupt. Instead, stick to verifiable facts and your emotional responses. Show, don’t tell. Let your readers come to their own conclusions.
- Memories are subjective and evolve over time. Verify your memory by conducting research and interviewing others. Retain records to support your statements.
- Rely on publicly disclosed information, such as court documents and news reports wherever possible.
- Consider altering names, places, and identifying characteristics so targets are not easily identifiable. The more villainous the character, the more changes you should make.
- Consider using a pen name and hiding your identity. The people in your book may be less recognizable if readers do not know there is a connection.
- Watch your motives. If you are writing a getting-even book, write the manuscript with passion, and then put it aside for months, even years. With time and perspective, you will be better able to mask your characters and make the story more universal.
- Ask yourself how important the information is to your narrative arc. Judges and juries can be moralistic and will punish someone who discloses private information gratuitously or maliciously.
- Don’t forget to consider the privacy of smaller players in your work. For instance, if you are writing about a renowned playboy, consider whether you are intruding upon the privacy of his conquests.
- Get releases and consents from recognizable people appearing in your work whenever possible.
- Wait until your targets have passed away. (Okay, most of us don’t want to wait.)
- Add disclaimers. See my post Book Disclaimers Don’t Have to be Boring.
- If accused of a defamatory statement, consider publishing a retraction.
- Engage an attorney to review your manuscript.
- Always reach for the truth when writing—it’s the best defense.
(Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.)
On June 8, 2017, I released the second edition of Self-Publisher’s Legal Handbook. This updated edition covers new topics including using pen names and disclaimers and includes an expanded chapter on using real people in your work. Check out the new edition on Amazon.
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