Q: I am writing a memoir and need to know if I can use real names in the book. I am going to write about some terrible experiences and some don’t show people in a favorable light. Can I use their names? Also, how can I be sure to protect myself from any possible litigation? —Anonymous
A: Writing about real people in your life is tricky, especially if you cast them in a negative light. Once you put it into print there’s always a possibility of a lawsuit. Augusten Burroughs, rightly or wrongly, was sued by the family of his psychiatrist for Running With Scissors (the family accused him of making up events to make his book more marketable).
According to legal expert (and friend of WD) Howard G. Zaharoff, there are two rights you must respect: disclosure and defamation.
“The right to avoid disclosure of truthful but embarrassing private facts is the first right,” says Zaharoff. “For example, I am reading John Sandford's latest Prey novel, in which a well-known politician is accused of having sex with an underage woman. She offers proof that she had sex with him by describing two semicolon-shaped freckles on his testicles. Unless they are relevant to an important and truthful account you need to tell, I would avoid that kind of disclosure.”
OK, I’ll give you a moment to get that mental picture out of your head. But you get the point. Don’t share negative or embarrassing information unless it’s absolutely necessary to your story. It can only hurt you. Back to Zaharoff:
“Second, U.S. law prohibits defamation, that is, oral or written falsehoods that hold the subject up to scorn or ridicule. Every negative statement you make about a living person must be true and, ideally, supported by evidence.”
Of course, if you say something so awful about a person you will always risk a lawsuit, particularly where your only support is your word. And, Zaharoff notes, that's a costly experience even if you ultimately win, and there is no guarantee you will.
So the real question is, How do you tell your story without risking any form of litigation? Disguise the names and biographical data and make sure that no one can identify the subjects from your description. Use a pseudonym if need be. And ALWAYS (it’s in all caps for a reason) talk with a knowledgeable lawyer first. A little cash now can save you a lot of cash in the future.