• Trish Lockard

Memoir and Law: Understanding Defamation and Invasion of Privacy



NOTE: This article is not meant to take the place of professional legal counsel. The author is not a lawyer and has never been through the process of a defamation or invasion of privacy lawsuit.


From the moment your manuscript starts to take shape, you will feel a sense of purpose. You will share stories from your life that provide genuine value for the readers; stories that honor, inspire, encourage, and heal.


You’re writing and making progress. You feel empowered and you tell everyone what you’re doing, what you’re writing about. And it’s all dandy until some killjoy says, “Be careful you don’t get sued.”


Oh, criminy! That’s a cold shot. Is getting sued for a memoir even a legitimate possibility?


“But it’s all true,” you say. “How can I get sued if it’s true? Anyway, I can write whatever I want—it’s my memoir, my story.”


The fear of a lawsuit can keep people from writing their memoirs or, at least, keep them from writing the story they really want to tell. Lawsuits against memoirists are a sad reality, one you want to avoid at all costs. You might have questions at this point.


As a memoirist, what can I be sued for?


How can I tell my story honestly without tempting a lawsuit?


What legal liability am I willing to risk with my memoir and is that risk worth it?


What precautions can I take to avoid a lawsuit?


Let’s get started.

Understanding Defamation and Invasion of Privacy

What are the legal ramifications of writing about another person in a bad light? After all, you are revealing things about others in your memoirs they might not want revealed and would not choose to reveal on their own. What could you be sued for? The two forms of legal liability a memoir author needs to be concerned with are defamation and invasion of privacy. First, I’ll define them. Then I’ll discuss how to avoid such lawsuits.

Defamation

By definition, defamation is someone’s claim that something you said or wrote about them is untrue, and that this brought loss, pain, or harm to them in some way—their finances, job, reputation, or relationships. There are two forms of defamation. When you defame someone by speaking falsely about them, it’s slander. When you defame someone in writing, it’s called libel. As a memoirist, you should be concerned with libel.


These are the best ways to avoid a defamation lawsuit:

· Tell the truth. Don’t fabricate. Don’t exaggerate.


· Get consent first. Prior consent is your suit of armor again a defamation claim.


· Make the claim confidently if the information is a matter of public record, such as military, employment, or criminal records.


· Confirm that witnesses will step forward to corroborate your story.


It’s not always possible to get consent (for example, the person cannot be found, refuses to comply, or disagrees with your allegations). If you know your truth, don’t let this stand in your way. Make sure to read the section titled “Ways to Legally Protect Yourself.”


If you are uncertain about the legal liability of what you have written, seek professional legal counsel.

Invasion of Privacy

Invasion of privacy is known as “the right to be left alone.” Many memoirists are familiar with defamation and worry most about this when writing a memoir. But, in truth, invasion of privacy might be the more concerning legal issue. Here’s why.


Unlike defamation, with an invasion of privacy claim it does not matter whether the statements made in the memoir are true. That’s right—every word can be undeniably true and a privacy lawsuit can still be filed. There are four elements of such a lawsuit.


An otherwise non-public individual (i.e., not a celebrity, politician, or public figure) has a right to privacy from:

1) intrusion (intentional) on one's solitude or into one's private affairs;

2) public disclosure of embarrassing private information;

3) publicity which puts him/her in a false light to the public; and

4) appropriation of one's name or picture for personal or commercial advantage.

Generally, for the plaintiff (the injured party) to prove invasion of privacy, all four of these elements must be established. (I say generally because this requirement varies from state to state.)


Of these four elements, #2 is the most damning in a privacy claim and the one I found the most difficult to explain here. A successful invasion of privacy claim depends on proving that you have revealed facts not related to public concern, that is, a public disclosure of private facts.


To further complicate the matter, states define public concern differently, but one characteristic that applies across the board is newsworthiness. Is the disclosure newsworthy? For it to be newsworthy, it is something the media are likely to find interesting enough to write about or broadcast. This is typically the case when the disclosure is about something illegal, salacious, or against human decency.


Therefore, a defense against this claim will depend on arguing a legitimate public concern. This can take a number of forms. In some cases, the fact that a publisher chose to publish the book has been enough to show a legitimate public interest. Also, courts have tended to rule in favor of an individual’s right to tell their own stories, even when they contain salacious or distasteful allegations. But this is not a given.


As with libel, consent is the ultimate defense against a claim of invasion of privacy. Consent can be written or spoken, explicit or implied. (Implied? If you tell someone you are recording them for a memoir and they let you, it will be difficult for them to later claim that your memoir invaded their privacy.)


If you are uncertain about the legal liability of what you have written, seek professional legal counsel.

IMO

By the way, you cannot be sued for simply stating your opinion about someone. If you say you felt bullied by your older siblings and they made you feel stupid as you were growing up, they might not ever speak to you again, but they can’t sue you. That’s one of those trade-offs that must be your decision.

What (or Who) Do You Risk Losing?

Are you prepared for the personal or professional consequences of stories in your memoir? Family members, ex-spouses, partners, friends, co-workers, or bosses are just some of the “characters” in a memoir who might take offense at what you have written about them and, subsequently, cut ties. Are the stories, the quotes, and the revelations worth it?


To help decide, you might ask yourself: Why is the person in the book? Based on the story I am telling, is the inclusion of the person and their actions necessary to the story? How would the story change if I left them out?

Ways to Legally Protect Yourself

You don’t want to get sued. If you are working with a publisher, they don’t want to get sued either. So how can you write the memoir you want to write without this happening? Nothing is full proof, but here are the most effective techniques:


· Get consent. Whenever you can, get permission before you record, interview, or write about someone. The same is true if you are using letters, photos, or other materials created by others. It might not always be possible to get someone’s consent. If it’s not, consider the other techniques.


· Alter identifying information: such as names, places, genders, professions, and distinguishing characteristics (tattoos, scars, height, etc.). Changing information to protect privacy is an acceptable practice for memoir writers.


· Use a pseudonym. Also called a pen name, this can add another layer of protection.


· Consider your motives. I’ve said it before, do not write a memoir seeking revenge or hoping to do harm to someone’s reputation. A memoir is not the way to get even and an honorable publisher won’t touch it anyway.


· Verify your facts. Memories can falter. Research public records, talk to others who were a part of your story, review your own letters, pictures, and journals to confirm information as thoroughly as possible. Writing a memoir is no time to be hasty and careless.


· Ask yourself, how would you feel if someone wrote these stories about someone you love? If the thought bothers you, reconsider what you are writing.


· Add a disclaimer. Every memoir includes a disclaimer in the front material of the book. Publishers do so routinely. Read about the legal controversy surrounding the memoir Running with Scissors by Augusten Burroughs. He was sued for invasion of privacy and lost. There was an undisclosed monetary settlement and Burroughs had to call Running with Scissors a book, not a memoir, and was ordered to include a disclaimer.


If your have a difficult story to tell in your memoir, tell it! Write your story down as you remember it: what happened, what was said, how did the experience shape you? Live your truth through your memoir. Seek legal guidance later. There will be time.


In addition to my business, Strike The Write Tone, I am an editor, book coach, and ghostwriter for The Cheerful Word, a memoir publisher in Hendersonville, North Carolina.

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