Memoir and Law: Understanding Defamation and Invasion of Privacy

Updated: Nov 3, 2021



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 rev