“But it really happened that way,” the woman in my workshop wailed. “And now my ex-husband is suing me!”
Being sued for defamation and invasion of privacy are risks that every writer takes whenever they write about something that is not entirely and obviously pure fiction. Journalists, authors of historical and social-issues nonfiction, memoir writers and authors of creative nonfiction run particularly high risks of being sued for defamation and breach of privacy.
“But I have my First Amendment rights!” the distraught woman continued. “This is my story, I’m allowed to tell it!”
The First Amendment to the US Constitution guarantees that the state or federal government will not charge you with a crime for things you have written, even if they are untrue. But even that guarantee is limited, as disclosing classified information or misusing government computers and databases can lead to criminal prosecution, as can making statements supporting the enemy in times of war. However, the First Amendment does not in any way prevent someone from suing you in a civil defamation or invasion of privacy suit if your words have done them harm. The First Amendment does not protect a writer from lawsuits by the people you have written about.
“How can it be defamation if it’s my true opinion?”
Defamation is a published statement about a person or business which is false, causes injury, and is not protected by a legal privilege. Let’s unpack that a little bit: “Published” in this context does not mean that it has to be in a book or magazine. For defamation law purposes, “published” just means that you said it either orally (slander) or in writing (libel) to at least one person other than the person you are talking about. Leaning over the back fence and telling your neighbor Mabel that Sadie’s husband is having an affair is gossip, but it is also publishing that information for purposes of defamation law. If it’s not true — Sadie’s husband was only driving his visiting niece around town — and Sadie’s husband winds up harmed by it —women stop frequenting his shoe store because they think he’s a lout — then the published gossip is also defamation. It does not matter that you were of the opinion that Sadie’s husband was having an affair when you said it. If you spout harmful lies about someone that hurt them, you may be found liable for defamation when that person sues you.
“…and I heard she is only fifteen years old!”
Some statements are considered by the courts to be defamation per se. That is, they are such an awful thing to say about someone that, assuming they are not proven to be true, the course will presume they did harm so the person suing doesn’t have to prove they lost customers or experienced other damage due to the statement. Key among these is statements that claim or imply someone has committed a crime, if in fact they have not been convicted of that crime. This is a frequent legal issue for memoir writers who are writing about incidents of abuse or trauma. Claiming that a living person effectively imprisoned you (kidnaping) or physically or sexually abused you (assault, rape) can constitute defamation per se if that person was not in act charged and convicted of that crime — even if, in your opinion, the acts they engaged in ought to have been considered crimes. If your gossip includes the lush tidbit that Sadie’s husband’s paramour is under age, then assuming that Sadie’s husband has not in fact been charged and convicted of child sexual assault, he can sue you for defamation—and win—without even having to prove that people stopped coming to his store because of you and your gossip.
“….well, we know that he does watch porn all the time. That is absolutely true.”
The fact that something you write or tell other people is “true” may mean you can’t be successfully sued for defamation — but you can still be sued for invasion of privacy. The private life of a person who is not a “public figure” (celebrity) or “public official” is just that: private. An average Joe or Jane who watches legal porn at home, or wears their underwear three days in a row, or never washes the dishes, or tells their spouse how much they hate their workmates, has a reasonable expectation of privacy in those facts. A tell-all exposé or ranting memoir which exposes those private facts to the world, placing a private person in the public eye in a negative light, is an invasion of privacy, and you can be sued for it. A spouse has a reasonable expectation of privacy within their marriage; when the now-ex-spouse writes a memoir trashing their ex an recounting all the bad things he said about other people and all his bad habits in the household, he can sue or invasion of privacy—whether or not it’s true.
Four steps to minimize your liability as a writer
There are a number of things you can do as a writer to minimize your liability for defamation and invasion of privacy lawsuits. The first, of course, is scrupulous accuracy. The second is to familiarize yourself with defamation and invasion of privacy law—and know that these laws do vary somewhat from state to state. For example, some states protect the privacy of deceased people, and others do not. Laws about when you can record conversations, and whether those recordings violate privacy, also vary from state to state. The third thing is to obtain writers’ insurance, either through one of the national writing associations or through your local insurance agent. News and current-issues features publications and media are heavily insured; i you are writing for one of these as a journalist, make sure you understand whether and how that coverage applies to you.
Lastly, have a legal review of your manuscript by an attorney before you send it out for publication. An attorney can point out areas of your manuscript which may subject you to lawsuits for defamation and invasion of privacy as well as copyright infringement, military or governmental secrets violations, or contract violations (such as with a prior employer’s nondisclosure clause), and work with you to understand your risks and minimize your potential liabilities. Your attorney will ensure that you are informed of a range of options you can take depending on the nature of your writing and your personal risk factors.