| Don’t Write Alone
Shop Talk Writing About Real People
If you’re writing about real people and plan to publish your work, here are some things to keep in mind to stay out of legal trouble.
Authors of personal essays, memoir, biography, journalism, and some historical fiction may confront the issue of what — and how much — information can be included about real people without getting into legal trouble. Even authors who “fictionalize” real life can be threatened with defamation suits. Writing a fictionalized account of a true story is no guarantee you’ll steer clear of the law. This is one reason why we see so many disclaimers on books, films, and television shows, along the lines of: “ This is a work of fiction. Any similarity to actual persons, living or dead, or actual events, is purely coincidental.”
The good news is that privacy and defamation laws in the United States are relatively weak, at least in comparison to other countries. Of course, even the threat of a lawsuit may give your publisher pause, and your editor may ask for a rewrite to avoid the risk. For some publishers, the timeliness or importance of your story may be enough to convince them to take the risk, but for others, it may be a more difficult road. If you self-publish you largely take the risk yourself, because the law immunizes platforms like Amazon and other online service providers from liability in defamation and privacy for material they didn’t write themselves.
Defamation comprises both slander (which covers spoken works) and libel (which covers printed words, including e-publications). It protects individuals against false and harmful publications. You may have heard that “truth is a defense” to defamation and this is, well, true. Only false information is actionable.
Fact vs. Opinion
Defamation law doesn’t prevent you from sharing an opinion about someone else if it is relatively clear that you were not making a factual claim. Reasonable minds may differ on what constitutes an opinion in any given case, but that’s what judges are for!
For someone to bring a successful defamation claim against you, they must also be clearly identifiable by your words. That doesn’t mean you literally have to name them, but their identity must be obvious from the details you provide. Many authors who fictionalize true stories create “composite characters” (amalgams of different people) both for dramatic purposes and to minimize the chances that a character is identifiable as a real individual.
Limits of Defamation Law
You may have heard that “You can’t defame the dead.” Again, this is true. Defamation only protects people during their lives, unlike some of the privacy laws that can carry over to a deceased estate in some states, although this is unusual.
Defamation protections for public figures in the United States are also limited. It is very difficult for public figures to win defamation suits because of the higher standards of proof required. The public figure needs to demonstrate that you published with actual malice , which basically means knowledge of the falsity of the information or reckless disregard as to its falsity.
The question of “who is a public figure?” can be challenging. Generally, politicians and celebrities are included, but there is no clear line between those folks and, say, a YouTuber who goes viral for a couple of weeks, or a private individual who takes a public stance on a political issue.
Defamation is also a state law matter. There is no comprehensive federal defamation law, so a plaintiff has to figure out which state’s laws would apply, and which state’s court might hear the matter. This can be a time-consuming and costly process and can deter a person from actually suing you or your publisher for defamation.
American privacy law is also relatively weak compared with other countries. Like defamation, there is no comprehensive federal privacy law in the United States. There are some state-based privacy torts (civil wrongs), and they raise similar jurisdictional challenges to defamation laws. These torts include:
Intrusion into a person’s seclusion or private life;
Commercial misappropriation of a person’s name or likeness;
Public disclosure of private facts; and,
False light publicity.
While this may all sound scary, none of these torts are typically that big a deal in practice. Most of them require the person complaining to establish highly offensive or egregious behavior on the author’s part, and courts set the bar for this pretty high. The fact that a person is upset about what you wrote is usually not enough to support a successful claim. Courts have also required complainants to demonstrate some real physical or economic damage, which is hard to do. Again, the fact that someone was upset about what you learned or shared about them doesn’t usually translate into physical or financial loss.
The “misappropriation” tort might sound like the most problematic for authors because the person you wrote about may claim you made an unfair profit based on their life. However, this tort is more about using a person’s name or image (e.g. photograph) to suggest a commercial endorsement by them, rather than simply writing about them.
Defamation and privacy laws vary significantly worldwide. If you’re working with a foreign publisher, their lawyers can probably help you edit for the relevant market to comply with local law. However, a self-published author planning to enter a foreign market might do well to seek the advice of a legal expert in the relevant country’s law.
And of course, nothing written here is intended as formal legal advice, but hopefully this information is helpful if you are writing about real people.