Rachel:                Oh, and I’m sorry I said you were a cow in high school.

Monica:               That’s okay. I was a cow.

Rachel:                Yes, but I’m still sorry I said it.

– Friends, Season 1, Episode 17 “The One With Two Parts”

Disclaimer:

This post offers a broad overview of defamation law but is not intended to be read as legal advice. This is a complex legal issue that should not be taken lightly. If you have concerns about your own writing with regards to libel liability, you should seek independent legal advice.

I’ve had authors who were worried about writing about the people in their family. Memoirs are always a bit tricky like that. It’s your story, but it’s also the story of how your life was affected by them.

It’s more complicated than just which details to include and which to leave out. It becomes a question of, do you even want to represent them as themselves, or would you rather change their name, age, occupation, everything, in fact, apart from what they did for you or how they impacted on your life?

It doesn’t have to be for negative reasons. Some people really don’t want the credit. One of the writers I knew in uni wrote their own stories as novels because they didn’t want their subject to be embarrassed by how the writer looked up to them as their role model, their hero.

At the Brisbane Writers Festival, I heard a great talk by Sian Prior about her memoir, ‘Shy’, which chronicles her struggles with social anxiety. She wrote about living in the shadow of an ex of hers who was very famous. In her case, she said she didn’t need to check with him before writing about him. They had already parted ways, but more importantly, he had already written about their relationship in his own book! He’d already set the rules by not asking her before he wrote about her.

Her approach, knowing that she would uncover things about their relationship that people didn’t know, was to be rigorous about being honest. By contrast, she did check with her family about her portrayal of each of them, and they were all surprised but happy with her including them in her story.

Lots of people worry about defamation law – specifically, the written form, ‘libel’. Here’s the raw basics:

• If you write false statements about another person or entity (company, etc.), and the statements clearly identify that specific person/entity, and those statements injure that person/entity’s reputation, then you can be successfully sued for libel.
• Can I just change their name and the place they live, and write the rest of the story as is? Nope. If someone can still tell – name and place aside – who I’m talking about, then I’m in trouble.
• Can the family of the person get mad and sue me? Only if the reputation of the whole family is injured, not just of that person. If the person you’ve talked about is deceased, their family cannot sue you for injuring the reputation of the deceased relative.

There are a few defences to libel actions, so if you do these two things when you write about someone, you’ll be okay:

1. Tell the truth. Truth is the one defence to defamation actions. As long as you can prove that what you said was true, you can say it in legal freedom.
2. State your opinion on matters only. (“I think I saw him in the carpark when the drug deal went down. In my opinion, he could have been found guilty.”) But again, you need some evidence to prove that your opinions are logical and based on evidence.
3. Write what is in the ‘legitimate public interest’ to know only. If a publisher selects your book to publish, good news – that’s enough to say that the content is ‘in the public interest to know’. However, if you’re self-publishing, the courts have indicated you may be in trouble. If your self-published book sells well, that may be enough to show the story was ‘in the public interest’. And if it barely sells at all and no one reads it, that’s good news, too, because you can’t be sued if you haven’t actually injured the person’s reputation.

Other handy hints:

• Avoid unnecessary disclosures. Write what you need to, and no more (the golden rule of the minimalists).
• If they’ve made it clear that they value their privacy, and wouldn’t appreciate being spoken or written about, don’t do it.
• Stick to your first person experiences. Don’t tell the reader what someone else told you about the person you’re writing about.

Because here’s the rub, the thing that I’ve not said until now:

Writing about your own life, if you care about the people in your life, is hard.

“Every secret of a writer’s soul, every experience of his life, every quality of his mind, is written large in his works.” – Virginia Woolf

It’s certainly much harder than writing fiction. If you write a novel, who does it affect? Nobody gets hurt in the real world. But if you write your story, and somebody else is in it, and they read it, you have no guarantee about how they’ll feel about your side of the story.

“There is nothing to writing. All you do is sit down at a typewriter and bleed.” – Ernest Hemingway

What’s to be done, then? Shall all the memoir authors crawl back into their shells and never write again? Shall they write only their experiences that involve no other people, and write insipid books that no one will ever read? No!

Go, write, share. Be careful, be honest, be real. We’re listening.

 

For some great case examples of authors who didn’t get away with writing about other people – because they did it wrong – check out this great post by the Writers’ Digest (2010). You can find more information about defamation law for writers at the Arts Law Centre of Australia website.

 

This post was written by TJ Withers-Ryan © 2014. Reblogging is highly encouraged as long as you credit me as the author. Thank you to all of you who have reblogged and credited me as the original author! You’ve done the right thing. 🙂