December 17, 2017

Libel and Invasion of Privacy in Memoir

lock-and-keySo many memoirists Linda Joy and I work with are concerned about legal issues surrounding libel and invasion of privacy that it’s high time we get clear about what you can and cannot do in memoir here on our blog.

I obtained the information below about libel and invasion of privacy at a session I attended at Pub U  in April (notice—next year Pub U is happening in Salt Lake City, April 8-9), where attorney Jonathan Kirsch was helping a bunch of publishers and authors wrap their mind around the likelihood of getting sued for something we might publish in a memoir.

The highlights include the following:
• Libel is a false statement of fact, so if you’re telling the truth, it’s unlikely that you’d be sued for libel.

• Invasion of privacy is a true statement that discloses something private and embarrassing about a living individual. The good news here is that if you’re writing about someone who’s no longer living, you won’t be sued for invasion of privacy. The note of caution is that if a person is still living, you need to be conscientious to change identifying facts about that person to protect yourself from getting sued.

Two examples in my own experience happened during my time at Seal Press. In both instances, we received cease and desist letters. In both instances, these letters came on the heels of the authors sending their galleys (as a courtesy) to the people who ended up having their lawyers send the cease and desist notices. In the first case, the woman threatening us was an employee at a major organization, and she felt that the way she was being depicted could hurt her reputation there; in the second case, the woman threatening us was a high-profile person who did not like the way she was being depicted by the author. Both cases were subjective. The authors had written what they remembered, and the women’s lawyers were adamant that the events did not happen as the author recalled them. This is a problem with memoir, because memoir is always based on the author’s memories. And yet, if you’re worried that there might be a person you’re writing about who could be litigious, then you are better off protecting yourself and changing identifying details.

Many memoirists balk at this idea because the person they’re writing about is an ex, or the father of their child, or a close relative. There is no way to change the essence of who they are without changing the story. Sometimes in these cases you may need to omit details you wish you could share; in other cases you might be more worried than you need to be, perhaps even looking for subconscious reasons not to write or not to publish. Everyone is different, and every circumstance is different, but we recommend writing uncensored. Don’t worry about libel and invasion of privacy during your first draft. Write the story you want to write, and then see how it feels to have it living on the page. That is not the same as it being in a book, available for sale. You will be able to make better choices once you’ve actually written the words that feel scary, or dangerous, or potentially libelous. If you need to, you can and should hire an attorney, like Mr. Kirsch, to vet your work.

Good luck to you! Write your truth!

 

Libel and Invasion of Privacy
(Copyright Jonathan Kirsch, jonathankirsch.com)
Content may raise the risk of a claim for libel or invasion of privacy. As a general rule, libel is a false statement of fact that results in damage to the reputation of a living individual or a business, and invasion of privacy is a true statement that discloses something private and embarrassing about a living individual.

Libel claims may arise from text if it contains an assertion of fact that is both false and injurious to the reputation of a living person, or if it contains a false and damaging assertion about the products and services of a company.

Libel claims may arise from the use of an image if the image conveys a false and damaging impression. The classic hypothetical is the publication of a photograph that shows an otherwise respectable person sitting next to a person of known bad character—for example, a preacher sitting next to a prostitute. If, in fact, the photograph has been cropped in a manner that prevents the viewer from seeing that the preacher and the prostitute happen to be sitting next to each other in a crowded movie theater, then the posting of the image may constitute an act of libel because it falsely suggest that the preacher is consorting with the prostitute.

Invasion of privacy claims may arise from the assertion of a fact in text—and/or the use of an image—if it is true but also intrusive. For example, a photograph showing an individual in an embarrassing act or situation, or the disclosure of such act or situation in text, might raise the risk of a claim if it was taken in a bedroom or other private place where the individual enjoyed a reasonable expectation of privacy.

The text that accompanies an image may also raise the risk of legal claims that are not apparent from the image itself. If the caption, headline, or other adjacent text might distort how the viewer understands the image, then an otherwise innocuous image might amount to an act of libel or invasion of privacy. For example, if an otherwise innocuous photograph of an individual appears on the same screen with a headline that states “FAMOUS ATHLETES WHO TAKE DRUGS,” then the viewer might believe the person in the photograph is a drug user.

As a general rule, libel and invasion of privacy claims may be brought only by living persons, and so an image of a deceased person will not ordinarily raise such risks.

Comments

  1. Judy Pigman says:

    In my memoir, I speak of a couple, my landlord, and landlady. They were colorful and fun and interesting. I lived in their home as a renter for two years. They become important and add energy in my story and I want to use their names. They are now deceased. Do I need to get permission from one of their grown children in order to use their names? I use them only favorably in my story as they were truly wonderful people to me.

  2. Brooke Warner says:

    You do not need to get the permission of their family to use their real names. Even if they were to later object to their relative being portrayed in your memoir, the only grounds for a lawsuit would be libel or slander or speaking about them in some way that negatively portrays them, so you’re fine here. 🙂

    • Judy Pigman says:

      Brooke–thank you so very much! I really appreciate your response to my question! For me, and hopefully for my reader too, it will make all the difference in my ability to portray them using their real names!! Thank you!!

  3. Great insight & advice . I appreciate your knowledge. Write the truth first & edit out later. Beautiful!
    Thanks a bunch !
    Lisa schomer

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