When you sit down to write your memoir, there are some legal issues that you need to be cognizant of, such as defamation, invasion of privacy, and right of publicity. There are other items to be aware of as well, but let’s focus on these three for now.
Defamation
Defamation is a tort, which comes in two forms: libel and slander. Libel occurs when you publish a false statement purporting to be fact that injures another’s reputation, whereas slander occurs when you speak a false statement that injures another’s reputation. For our purposes, let’s focus on libel, since that is most relevant to authors. So the first question you may ask is how do you commit libel? A plaintiff suing for libel must prove four things:
1) Publication – a publication must be communicated to a third person (that is, to someone other than whom the statement is about). Publication can be in many forms, such as in a newspaper or online forum, for example.
2) Identification – the statement has to be “of and concerning” that particular person. The real person need only be identifiable to readers via the information provided in your book. As an aside, please note that businesses can also be defamed. Groups of people cannot be defamed; however, if a statement about a group can reasonably be interpreted to refer to someone specific in the group, then that can potentially be defamatory.
3) Fault – the plaintiff must prove that the defendant was at least negligent in publishing the statement. However, plaintiffs who are public figures have a higher level of fault to prove, which is referred to as “actual malice.” Actual malice means that the defendant knew the statement was false or recklessly disregarded whether it was true and published the statement anyway.
Public figures are broken down into two categories:
i. General Purpose Public Figure (e.g., celebrities)
ii. Limited Purpose Public Figure – someone who has voluntarily assumed a leading role in a particular public controversy.
4) Harm - the statement causes harm to the person or entity who is the subject of the statement (e.g., damaging a person’s reputation). Some examples of statements that can cause harm are statements regarding improper sexual conduct, associating someone with a disease, accusing someone of illegal behavior, hurting someone’s livelihood, and alleging racial or religious bigotry.
Defenses to libel are the truth, opinion, and parody/satire. However, just because you claim a statement is your opinion doesn’t mean that it still can’t be defamatory. For example, writing “in my opinion, he is a drug addict” can imply a false statement that can be just as defamatory as writing “he is a drug addict.”
Invasion of Privacy
Individuals who feel their right of privacy has been invaded may also sue you. Even if a statement is true, which can be a defense to a libel claim, that same statement can potentially invade the privacy of another. Examples of invasion of privacy are private facts that are disclosed that aren’t of public interest (however, the person has to have had a reasonable expectation that the disclosed information was to remain private); intruding into someone’s personal life; and misrepresenting someone in a false light.
Right of Publicity
Individuals have a right of publicity, which means they can protect someone from using their name, image or likeness without permission. This usually refers to famous people. The law also normally applies to living individuals, but some states have created a post-mortem right of publicity, such as California and most recently New York. A good example is that you can’t use a famous person’s image on your book cover (or an endorsement) to boost sales without permission.
If you need any assistance in vetting your manuscript for libel, invasion of privacy, and right of publicity, feel free to reach out.
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