A Writer’s Guide to Defamation and Invasion of Privacy

A memoir is your story, but of course it will involve many other people. Most of us have not led completely charmed lives. Everyone has ups and downs, and those who write memoirs usually have had mountains and valleys—that’s what makes them so interesting. Recent bestselling memoirs are replete with addiction, abuse, homelessness and triumph over these adversities. But do the other people in your story want theirs told? Are there elements that might be embarrassing to them? Will their memories be in sync with yours?


This guest post is by amy-cook-featuredAmy Cook. Cook is an attorney who has focused on intellectual property and publishing law issues for more than 20 years. She is on the board of directors of Lawyers for the Creative Arts and serves as the Managing Editor of the Chicago Bar Association’s magazine, The Record. She is a frequent seminar leader, most often at Chicago’s Newberry Library and also has been a presenter at the University of Chicago’s Graham School of Continuing Education, University of Illinois at Chicago, and Depaul University, among others. Cook is proud to have a long association with Writer’s Digest magazine, having written numerous feature articles on legal issues affecting writers. Connect with Cook here.


 

Writers don’t get sued very often—and thanks to the First Amendment, even when they do, they usually prevail. But as an attorney specializing in these issues, I can tell you that you definitely don’t want to put yourself in a position to endure any sort of lawsuit, even if the odds are you’d end up victorious. Many writers mistakenly assume their publishing company will protect them—after all, it’s a large corporation with, presumably, a bunch of suits eagerly waiting to avenge you. But here’s the truth: When you sign a publishing contract, you promise that your work will not defame anyone or invade anyone’s privacy (along with a number of other assurances)—and you agree to indemnify the publisher in the event of a lawsuit against your work. In other words, the onus is on you to deal with any legal troubles that come your way. Most self-publishing companies have similar clauses.

So what can you do to protect yourself? Your best defense is to understand—before you publish your work—the legal issues that apply when you’re writing about real people: namely, defamation and invasion of privacy.

Understanding Defamation

Defamation is when you injure a person’s reputation; in legal speak, it’s when you “lower them in the estimation of the community or deter third persons from dealing with them.” It’s a false statement of fact. Only living people can sue for defamation; heirs cannot make a claim about a deceased relative’s reputation.

The allegedly defamed person must prove that he is identifiable to readers by the setting, physical description or other factors. Changing someone’s name and physical description is a good start, but it isn’t necessarily enough to prevent a lawsuit. Truth, however, is always a defense to a defamation charge. As long as you can prove your ex cheated on his taxes, he cannot sustain a defamation claim.

What if you don’t have proof? A defamation claim can be based only on something stated as fact—so, the good news is that your opinions are protected expression. That said, don’t think simply couching your accusation as opinion—“It’s my opinion that John Jones deals drugs,” or, “I believe Sara Smith embezzles from her employer”—is an easy out. Any such opinions need to be clearly relevant to your story, and should be supported with viable evidence or reasoning.

[Understanding Book Contracts: Learn what’s negotiable and what’s not.]

DISCLAIMING CONFLICTING MEMORIES
Sometimes truth and fact aren’t always black and white. Memoirs are people’s recollections about events in their lives, and we all know that people can remember situations and conversations differently without purposely intending to deceive anyone. This is where a good deal of legal wrangling in memoirs has originated.

In 2005, the Turcotte family filed a lawsuit against Augusten Burroughs and his publisher, St. Martin’s Press, alleging defamation and invasion of privacy. The Turcottes said they were the basis for the Finch family Burroughs lived with and subsequently portrayed in his bestselling memoir Running With Scissors, and claimed the book contained fabricated or sensationalized descriptions of events.

Burroughs defended his work as accurate, but in the settlement, agreed to call it a “book” rather than a “memoir” in the author’s note (though it’s still referred to as a memoir on the cover, title page and elsewhere), and to recognize in his Acknowledgments in future editions the Turcotte family’s “conflicting memories” of events.

The Acknowledgments changed from: “I would like to thank each and every member of a certain Massachusetts family for taking me into their home and accepting me as one of their own,” to, “I would like to thank the real-life members of the family portrayed in this book for taking me into their home and accepting me as one of their own. I recognize that their memories of the events described in this book are different than my own. They are each fine, decent and hard-working people. The book was not intended to hurt the family. Both my publisher and I regret any unintentional harm resulting from the publishing and marketing of Running With Scissors.”

If you know you’re delving into disputed territory, consider addressing it in a similar way in an author’s note on your own volition. It could save you the expense and hassle of being forced to do so later.

[Memoir or Novel? 8 Issues to Think About Before Writing Your Own Story]

CHANGING IDENTIFYING DETAILS
Changing names and descriptions may not be enough if other details give away who the subject really is. And this doesn’t just apply to memoir, either. In a famous case where a novelist created a character based on a real person, she changed his name and physical description, but not much else. The author, Gwen Davis Mitchell, had attended a “Nude Marathon” therapy session in which participants shed their clothing in hopes that psychological inhibitions would go along with it. (Need I mention that this was 1970s California?) Prior to attending the session, Mitchell had signed a contract pledging she wouldn’t in any way disclose what had transpired. After the book, Touching, was released, Dr. Paul Bindrim sued the author and her publisher for defamation, saying that the character Dr. Simon Herford was clearly based on him, that colleagues identified him as Herford, and that his words and actions during the sessions had been inaccurately depicted.

Mitchell’s character was described as a “fat Santa Claus type with long white hair, white sideburns, a cherubic rosy face and rosy forearms,” whereas Bindrim was cleanshaven and had short hair. In ruling in favor of Bindrim, the court said the only differences between the character and the man were physical, and that otherwise they were very similar.

The author had tried to defend herself by citing another case in which a fictional character was based on a real person—but in that situation, there had been other differences, including age, profession, and time and place. That story had not significantly paralleled the real person’s life, so even though the plaintiff believed he’d been libeled, the court determined no one would be able to tell that the character was based on him. These are the types of changes you should employ any time you’re making embellished, disputable or untrue claims based on a real person, whether you’re writing a novel, a memoir or anything else.


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Understanding Invasion of Privacy

Even if everything you write about someone is completely true, you still need to consider her privacy. Invasion of privacy occurs when you publicly disclose private facts not related to public concern. As with defamation, only living people can sue for invasion of privacy.

In a case against Girl, Interrupted author Susanna Kaysen and her publisher, Random House, a court said that details revealed in a memoir fell under First Amendment protection as long as they furthered the public interest. Setting a sound precedent for other traditionally published memoirists, it also found that a publisher’s decision to release the book could alone be proof of public interest.

In the case, Kaysen was sued by an ex-boyfriend over her 2001 autobiographical book, The Camera My Mother Gave Me, which accused the man of offensive sexual behavior and (in the words of the judge) “culminated with the suggestion that he raped her.” The man, even though he’d been unnamed, said his reputation suffered because friends and business associates could identify him. But ultimately the court stressed the book was Kaysen’s story—saying she was “more than a disinterested party,” which gave her extra First Amendment protection.

There are two significant lessons here. One is the importance of a publisher’s backing as part of the criteria for establishing public interest. The second is the fact that more leniency is given to those telling their own stories involving unsavory aspects, as opposed to a third party, such as a journalist, who might trigger stronger invasion of privacy allegations.

AVOIDING UNNECESSARY DISCLOSURES
Quirky people in your life—people who are different and unusual—are probably the ones you want to write about. Those may be the very people who don’t want notoriety. Some people just don’t want their lives made public. The New Yorker published an article about a once well-known child prodigy who’d renounced his life of fame to become an “insignificant clerk” who would not need to use his unusual math talents. His personal habits—his laugh, manner of speech, intense interest in minutia—were commented upon at length, and his apartment was described as “shabby.” The court said the article was of great interest to the reader but it “may be fairly described as a ruthless exposure of a once-public character who has since sought and now been deprived of the seclusion of private life.”

In this case, the court found that because this person had previously been a public figure, the “Where is he now?” angle of the story made the attention permissible. But the court cautioned that revelations that are so intimate and so unwarranted “as to outrage the community’s notions of decency” should not be permitted.

When writing about such a person in your memoir, use the “sister” test: If you were to disclose this intimate and private fact about someone, would your sister/brother/neighbor find that fact offensive? If so, reconsider whether or not your story really requires those details, or could be just as effective without them.

DEPICTING CRIMINAL ACTS
Discussing a crime can be even trickier. The landmark case in which the court found that there was an invasion of privacy took place in 1971 in California. There, Marvin Briscoe sued Reader’s Digest for including him in a 1966 article about truck hijackings. The article failed to note that Briscoe’s crime had occurred 11 years earlier.

The court, in ruling for Briscoe, said articles about past crimes deserve less First Amendment protection than stories about current events. The court concluded there was a strong public interest in protecting the identities of rehabilitated felons.

In a more recent similar case, however, a man sued the Discovery Channel for a show recreating an event where he had been convicted of being an accessory to murder about 13 years earlier. The California justices hearing this case expressed sympathy for the man but observed that the U.S. Supreme Court had clarified the law to the benefit of the media since the Briscoe decision.

The case the justices cited took place in 1975. A Georgia court clerk had permitted a reporter to see an indictment in a rape-murder case. Violating a state law, the reporter then broadcast the victim’s name. The victim’s father brought an invasion of privacy suit (on his own behalf, not his daughter’s), but the Supreme Court ruled that the media could not be liable for truthful publication of information obtained from public judicial records.

If your memoir features another’s criminal escapades, the legal precedent isn’t clear-cut. On one hand, criminal acts are public records. On the other, if the deed was a number of years in the past, and the person has rehabilitated himself, you’ll want to consider whether the crime really needs to be discussed—and, if it does, whether there is a need to disclose the person’s identity.

[Are you writing a memoir or an autobiography? Click here to learn the differences.]

PROVING PUBLIC INTEREST WITHOUT A PUBLISHER
We’ve talked about how courts have found that “a legitimate public interest” exists by the mere fact that a traditional publisher selected that book or article to publish. It may be circular reasoning, but there it is. Your story has interest to the public because an established media company has decided it has interest to the public. But what if you go the self-publishing route? There is no independent third party that agrees that your story has legitimate public interest prior to publication, so be aware that public interest may be more difficult to prove if you find yourself facing an invasion of privacy lawsuit.

So how can you demonstrate public interest if you’ve self-published your memoir? If your book sells well, that could lend weight to your defense. A market for comparable titles also could demonstrate public interest in your subject matter in more general terms. If you’re considering self-publishing and are worried about protecting yourself against invasion of privacy claims, peruse the shelves at the bookstore. If similar events have been written about and released by traditional publishers, you’re probably in the clear.

At the other end of the spectrum, if you self-publish without sales goals in mind—if your book reaches only, say, a few dozen people—then the bright side is that you probably won’t get sued.

The takeaways: Be truthful. If you’re going to negatively embellish events involving a real person, be sure the person absolutely cannot be identified. Don’t mention private or embarrassing facts about others unless you can honestly say they are of legitimate public concern and essential to telling your story. Ditto with bringing up a long-passed crime. Do include a disclaimer that this is your recollection of events, that you’ve related them to the best of your knowledge, and that some identities have been changed or are composites.

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Brian A. Klems is the editor of this blog, online editor of Writer’s Digest and author of the popular gift book Oh Boy, You’re Having a Girl: A Dad’s Survival Guide to Raising Daughters.

Follow Brian on Twitter: @BrianKlems
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    An amazing testimony on a spell caster who brought my wife back to me, My name is Eric Gomez, i lives in Los Angeles CA. and I’m happily married to a lovely and caring wife,with two kids, A very big problem occurred in my family seven months ago,between me and my wife so terrible that she took the case to court for a divorce she said that she never wanted to stay with me again,and that she did not love me anymore So she packed out of my house and made me and my children passed through severe pain. I tried all my possible means to get her back,after much begging,but all to no avail and she confirmed it that she has made her decision,and she never wanted to see me again. So on one evening,as i was coming back from work,i met an old friend of mine who asked of my wife So i explained every thing to her,so she told me that the only way i can get my wife back,is to visit a spell caster,because it has really worked for her too So i never believed in spell,but i had no other choice,than to follow her advice. Then she gave me the email address of the spell caster whom she visited.(Templeofloveandprosperity@gmail.com}, So the next morning,i sent a mail to the address she gave to me,and the spell caster assured me that i will get my wife back the next day what an amazing statement!! I never believed,so he spoke with me,and told me everything that i need to do. Then the next morning, So surprisingly, my wife who did not call me for the past seven {7}months,gave me a call to inform me that she was coming back So Amazing!! So that was how she came back that same day,with lots of love and joy,and she apologized for her mistake,and for the pain she caused me and my children. Then from that day,our relationship was now stronger than how it were before,by the help of a spell caster . So,you can visit his Web site to know more about him: http://africatemple.yolasite.com. if you have any problem contact Dr Frank Ojo, i give you 100% guarantee that he will help you. So thanks to Dr Frank Ojo for bringing back my wife,and brought great joy to my family once again.{Templeofloveandprosperity@gmail.com}, Thanks..

  18. blendapa

    I want to use this medium to thank Dr shiva for helping me to get back my husband back after he left me and the kids for 5 months to suffer.When he left,he told me that he dont love me again and he has found another woman which he loved.I cry everyday because i love him so much and i decide to go the net for help when i saw a lady’s post of how Dr Shiva help to get her husband back who divorced her and i just say to myself let me give this Dr shiva on (reunitingexspell@yahoo.com) a try and indeed he is wonderful he help me to get my husband back within 2days and my husband return to me and promise to love me forever and beg me for the pain he cost me. I will forever be greatful to you Dr Shiva and i will not stop to publish your name on the internet for people to see because you are so great.You can email him at reunitingexspell@yahoo.com and he will also save your marriage.

  19. loganhannah

    My name is Hannah from USA. I am here to give testimony on how I got my husband back, my husband left me for no reason months ago. He moved in with another woman, I felt like killing myself, my life became very bitter and sorrowful. Then one day a friend of mine told me about a great spell caster that is very good and she said that he told her all about her life history and the problem she is facing, i didn’t believe it because I’ve worked with so many of them and it didn’t work. She begged me further so I decided to try this great spell caster called Great Dr Excel . I still didn’t believe but inside me i wanted to give a try and as God will have it i used the spell solution he gave me and the next day and I really received a call from my darling husband, He apologized and came back to me. I’m very happy now with my family it worked for me and i believe it will work for you, give him a try and follow up, this is a clear truth from a testifier. Thank you Dr Excel once again, if you want to reach him via email: Excellovespell@hotmail.com or call him on +1 (415) 878 1205

  20. rameylauralee

    This article is dedicated to Osemu Okpamen the genuine spell Doctor. My boyfriend left me because i had CANCER of the breast for 2 years. I seek for help from my home doctor but he couldn’t do anything towards my condition not until a friend of mine from high school directed me to Doctor Osemu Okpamen. I contacted him via his email ( Doctorokpamenspelltemple@hotmail.com ) and he assured me that my CANCER will be cured and my boyfriend will come back to me as well. I took his words with faith and today am been cured from CANCER and my boyfriend is back to me as well all within 24 hours after i contacted him. If there’s anyone out there that needs his help should get in touch with him now!!! Website: doctorokpamenpowerfulspelltemple.webs.com, what’sapp him on +2348135254384. RAMEY LUARA (901) 231-7127, USA.

    1. blendapa

      I want to use this medium to thank Dr shiva for helping me to get back my husband back after he left me and the kids for 5 months to suffer.When he left,he told me that he dont love me again and he has found another woman which he loved.I cry everyday because i love him so much and i decide to go the net for help when i saw a lady’s post of how Dr Shiva help to get her husband back who divorced her and i just say to myself let me give this Dr shiva on (reunitingexspell@yahoo.com) a try and indeed he is wonderful he help me to get my husband back within 2days and my husband return to me and promise to love me forever and beg me for the pain he cost me. I will forever be greatful to you Dr Shiva and i will not stop to publish your name on the internet for people to see because you are so great.You can email him at reunitingexspell@yahoo.com and he will also save your marriage.

  21. lisapresley

    My name is Lisa Presley I am from United States i want to thank Dr Abiodu (drabiodutemple@gmail.com)I was in a relationship with Presley and we loved and cherished ourselves for 6 good years and every thing was going on smoothly but February 14 a day I can call a lovers day we both had misunderstanding because I answered a call from a co-worker that is asking me out for a date but I refused, and he told me that the relationship is over and that he is fed up with me and I begged him because I love him so much but he refused because our kids were already grown up. I was so down cast and I felt the world has come to an end for me but my friend told me about a spell caster that helped her sister out in getting her relationship back, a good job and favor in any of her endeavor but at first I was scared but I have to give this man a trial because I love Presley very much and I am not willing to loose him to any woman, so I ordered returning my love spell from this great spell caster that made me a happy woman again to say it all my ex came back to me with much love and a caring heart…i am testifying to this great spell caster Dr Abiodu. if you need his help you can contact him on
    drabiodutemplegmail.com

    for any kind of problem you are having,
    1) If you want your ex back..
    (2) If you want to be promoted in your office.
    (3) If you want women/men to run after you.
    (4) If you want a child.
    (5) If you want to be rich.
    (6) If you want to tie your husband/wife to be yours forever.
    (7) If you need financial assistance.
    (8) If you need a spell of luck.
    (9) If you want to stop your divorce.
    (10) If you want to divorce your husband.
    (11) If you want your wishes to be granted.
    (12) Pregnancy spell to conceive baby
    (13) Guarantee you win the troubling court cases & divorce no matter how what stage
    (14) Stop your marriage or relationship from breaking apart.
    (15) If you have any sickness like ( H I V ), (CANCER)
    drabiodutemple@gmail.com

  22. JOHN1

    Am writing this article to appreciate the good work of Dr. Osagunleje that helped me recently to bring back my wife that left me for another man for no reason for the past 3 years. After seeing a post of a woman on the internet testifying of how she was helped by Dr. Osagunleje. I also decided to contact him for help because all i wanted was for me to get my wife, happiness and to make sure that my child grows up with his mother. Am happy today that he helped me and i can proudly say that my wife is now with me again and she is now in love with me like never before. Are you in need of any help in your relationship like getting back your man, wife, boyfriend, girlfriend, winning of lotteries, herbal cure for sickness or job promotion E.T.C. Viewers reading my post that needs the help of Dr. Osagunleje should contact him now on his E-mail: osajunlejeherbalcenter@hotmail.com …You can also call him on his mobile number +2348054422541

  23. IsabellaMly21

    Am Isabella Molly..Am very happy today not because of anything but just because of what this great man called Dr.Ogala did for me.i was so down when my ex husband leave me. I just can’t believe this now my ex husband is now back to me on his knees presenting a ruby rose begging me to take him back and he was feeling regretful and sorry for leaving me and for causing me pains after the divorce. And this whole miracle happened after i ordered an urgent 48hours of Dr. Ogala powerful spell which he cast on me and my husband. Sir I am the happpiest woman today in this whole wide world. Dr. Ogala you really did it..Yes.. Its a miracle and everlasting pleasure and cheerfulness for me and my family today..Thank you Sir for your precious help. You are a genuine spell caster and you will never be forgotten for making me a fulfilled woman once again.. You are my hero.. The kids are overjoyed to have their father come back home for good.contact him if you need urgent help in your relationship. email Ogalalovespell@yahoo.com call him +2348147673679

  24. Observer Tim

    This is an interesting discussion about anonymization and writing based on the real world. I am curious about something, though. Are the US provisions sufficiently similar to those of other countries (e.g. Canada, where I live) that I could use this as a starting point for understanding? I do recognize that If I found myself facing this situation (which I hope never to do) that I would have to seek proper legal advice from lawyers in my country.

  25. kieranholt55

    don’t listen to all of these other people; if a non-Christian had asked this query, they would not have been so mean, but since you are (i am ) they attacked you, because that is what the Devil desires them to do.
    Buy Coursework

  26. mccart

    Am here to testify what this great spell caster done for me. i never believe in spell casting, until when i was was tempted to try it. i and my husband have been having a lot of problem living together, he will always not make me happy because he have fallen in love with another lady outside our relationship, i tried my best to make sure that my husband leave this woman but the more i talk to him the more he makes me fell sad, so my marriage is now leading to divorce because he no longer gives me attention. so with all this pain and agony, i decided to contact this spell caster to see if things can work out between me and my husband again. this spell caster who was a woman told me that my husband is really under a great spell that he have been charm by some magic, so she told me that she was going to make all things normal back. she did the spell on my husband and after 5 days my husband changed completely he even apologize with the way he treated me that he was not him self, i really thank this woman her name is Dr Aluta she have bring back my husband back to me i want you all to contact her who are having any problem related to marriage issue and relationship problem she will solve it for you. her email is traditionalspellhospital@gmail.com she is a woman and she is great. wish you good time.
    He cast spells for different purposes

    1. jakebercher4

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