Ex-husbands and ex-wives. Former bosses and co-workers. Clients. Sisters, brothers, and parents. That’s who you want to write about—and that’s what we want to read about: the often messy and endlessly fascinating complexity of human experience.
What if those real-life people who are part of your story don’t want to be included or dispute your version of events? Memoirists and others writing about real-life events should review their work for potentially defamatory content, or if they have invaded someone’s privacy or publicity rights. But first things first: It is rare for writers to get sued and, in general, courts rely on First Amendment protections and tend to permit works that “illuminate the human condition.” Then why is it important to know this stuff? Fear of legal issues can hold many writers back. If you understand the risks and how to mitigate them, you will most likely feel more at ease releasing your story into the world.
To Tell the Truth
Defamation is an umbrella term for libel (written defamation) and slander (oral). Defamation is a false statement of fact that injures a person’s reputation. The courts ask: Does the allegedly defamatory statement tend to “lower the person in the estimation of the community or deter third parties from dealing with them?” State laws differ slightly, but certain behaviors and situations are so egregious that they will always be considered harmful to someone’s reputation and the plaintiff doesn’t need to prove damages. These include things like committing a crime, infection with a “loathsome” communicable disease, lacking ability or integrity to perform their job, and even adultery or fornication (yes, these laws can be dated).
A defamatory statement must be provable. Opinions are protected, but you cannot couch a factual statement as opinion, as in “I believe Derek embezzled from the company.” He either did or he didn’t. But saying, “Their lattes taste like dirt” is protected opinion. Private citizens need to show that the writer was negligent, but public figures have a much higher bar to prove defamation. They need to show that the writer had “actual malice” in publishing the falsehoods—that they knew it was false or had a reckless disregard for the truth. Truth is almost always a defense to a defamation claim. Another way the law protects writers: If there are two ways to construe a statement, the court will choose the non-defamatory way.
Only living people can sue for defamation, and the statute of limitations in most states is one to two years. This one is pretty easy to avoid: Get your facts right and don’t purposely spread falsehoods about anyone.
People have the right to protect their name, likeness, voice, and even signature from use by others for “commercial” purposes. Some states hold that publicity rights are limited to those with a “commercially valuable persona” (i.e., famous people) but others hold that it can be protected by anyone. As with defamation, it is relatively easy to avoid running afoul of this legal right: Do not use a famous person’s name or likeness to imply any endorsement of your work without permission. Biographies of famous people and non-defamatory mentions of famous people are, of course, permissible and common. It is also important to note that the fact that a book is for sale and can make a profit does not make it a commercial product.
Book covers are one area where authors can violate publicity rights. Don’t use someone’s image on the front or back cover without permission, as book covers have been found to have more of a sales and marketing aspect than the contents of a book. If you use stock photos, purchase a photo, or hire your own cover designer, be sure you have the rights for that specific use. These cases often depend on the nature of the book. One author lifted a couple’s engagement photo without their permission for the cover of his erotic novel. Unsurprisingly, they sued.
Rights of publicity, unlike defamation and invasion of privacy claims, do outlive a person. Heirs of famous people can sue on behalf of the deceased.
Right to Know vs. Right to Privacy
Even if what you write is true, someone could claim that the events described were meant to be kept private and that you’ve harmed them by publishing it. There are several types of invasion of privacy, but the main one of concern for writers is “public disclosure of private facts.” This is when there has been an unauthorized disclosure of private facts of an identifiable, living person. The information disclosed must be highly offensive to a reasonable person and not in the public interest. Like much in the law, this is vague. What is highly offensive? What is a reasonable person? (Do we even have those anymore?)
“Highly offensive” behaviors often include allegations of physical and verbal abuse, alcoholism, drug use, sexual matters, and financial improprieties such as tax evasion or embezzlement. The person claiming an invasion of privacy must show they were identifiable to other people and that they have been harmed in some way—not that they were merely embarrassed. Consider altering identifying information such as name, gender, age, race, and geographic descriptions for anyone who may have a privacy claim. When in doubt and where possible, get a release from your subjects. Your publisher may have a form or you can find samples online.
Most privacy cases turn on whether the information revealed is in the public interest. Fortunately, courts often side with writers, finding that people have the right to tell their own stories and that writing that illuminates the human condition is of legitimate public concern. Also, courts have found that a publisher’s acceptance of the work for publication shows that it is worthy of a wide audience.
Consider who else might be identifiable and avoid collateral damage to those within your subject’s orbit. One author wrote a workplace tell-all about true incidents that were known within his industry. However, the book included email excerpts from a particularly obnoxious co-worker that mentioned his wife’s medical conditions. Even if your colleague is a jerk, his (presumably long-suffering) family deserves some privacy. If he is identifiable, so are they.
There are some special situations where you should use extreme caution. Are you a doctor, therapist, attorney, or other professional who has a duty of privacy? Many professionals have regulating bodies with whom you should consult before writing about people in your practice. This is definitely a situation where you’ll want to obtain permission to include people in your work.
In the last few years, there have been a slew of therapist books that divulge patient stories. In an October 2020 Wall Street Journal article, Lori Gottlieb, author of Maybe You Should Talk to Someone, says she didn’t approach current patients or those she thought should not participate for clinical reasons. She says she used a rigorous permission process that included asking subjects to sign a release specifically for the book and talking with them about comfort levels and privacy protection.
Another potentially dicey situation is if you have signed a nondisclosure or confidentiality agreement in the course of employment, perhaps with a very wealthy or celebrity family (just the people we want to read about!) or controversial company. If you signed such an agreement, your first step is to read that over carefully. Some may be for a limited scope or time period. In general, nondisclosure agreements are considered valid as long as they are not designed for unlawful purposes, such as concealing a crime.
They Won’t Find Out … Will They?
Perhaps you have a blog or social media accounts with what you consider to be a fairly limited audience where you feel free to write about deeply personal events. Consider the case of a Washington, D.C. Senatorial aide who blogged about her sexual relationship with another aide, “RS” (pro tip: don’t “disguise” someone using their actual initials). Because her descriptions were hot gossip, a much more widely read blog linked to hers. RS sued, claiming “no reasonable person would want the intimate physical, verbal, emotional, and psychological details of his or her sexual life exposed on the internet for all the world to read.” Even if you are writing for a limited circulation, you should still review the work for defamatory or private information.
Use them, but be aware they are not bulletproof. For inspiration, take a peek at a favorite memoir or two and see what kind of disclaimer they used and tweak it to suit your purposes. If you have a traditional publisher, they may provide one for you. For instance, you may want to state something along the lines that your work is based on your own memories and that others’ memories may differ, that certain names, dates, locations, and other identifying information has been changed to protect privacy, that chronology of some events has been compressed, and that some conversations have been recreated.
Should I Get Insurance?
Consider getting liability insurance if you are writing about celebrities, individuals, or companies known to be litigious, or if you just will sleep better having obtained insurance. Check your homeowners insurance to see if you might have coverage or could add it. If not, writers organizations, such as the Authors Guild, offer it to members.
Should I Just Fictionalize It?
Some writers are so concerned about lawsuits that they consider fictionalizing their real-life stories. That’s certainly on option; it can give you more leeway to play around with events and characters. However, it’s not always full protection. If a person can be identified by the setting, physical description, or other characteristics, they could sue. Author Gwen Davis, in her novel, Touching, described a character as “crude, aggressive, and unprofessional,” along with other disparaging descriptors. A real-life therapist, whose sessions Davis had attended but promised not to write about, sued saying that he was identifiable and that his reputation was injured. The court said “the fact that Touching was a novel does not necessarily insulate Davis from liability from libel, if all of the other elements of libel are present.”
What’s the Worst That Could Happen?
You may choose to send pre-publication copies to people or institutions that may object to what you’ve said about them. The downside to this is that they may, indeed, object, and you may have to remove or alter that section of the book or article.
If objections arise after publication, the subjects could demand that the publisher trash the print run or remove sections from the next edition. In rare cases, a lawsuit may be brought. Surely your publisher will protect you if you get sued—they’re a big corporation with a phalanx of lawyers standing by ready to defend you, right? Sadly, probably not. Book contracts have a “warranties and indemnities” section where you warrant that you have not defamed anyone, invaded their privacy or rights of publicity, infringed anyone’s copyright, and so on. And that if you do breach the warranty, you will indemnify the publisher for any financial losses. While publishers will not delete this clause, there are a few things you can do to lessen your risk: Ask to be included in their insurance coverage, try to limit your liability to the value of the contract, obtain outside insurance, or hire an attorney to do manuscript vetting.
Keep in mind writer lawsuits are uncommon and avoidable with some planning and review. Be cautious when writing about real people—but don’t let it stop you. Your story is waiting to be told.