Writing about living people is one of the most difficult tasks a memoirist or essayist will face. With legal, ethical, personal, and literary issues confronting you all at once, the effort of writing may double in intensity. If you are a fluent writer, the double-think required here may slow your composition to a crawl. If you are a slow, cautious writer even at the best of times, these obstacles may bring your writing nearly to a standstill. But persevere, because some of the best writing arises from the most difficult circumstances.
The more I think about the complexity of writing about living people, the more the issue seems to branch, raising a host of concerns. I’d planned to cover the whole topic in just one post, but I see now that it will take several posts to do it justice. I’m not a legal expert, but I will at least gloss over the legal issues in this post. That last sentence has a caveat buried in it, which want to make explicit before I press on: I’m not a legal expert. The best I can do here is raise some (but probably not all) of the issues you should consider. If you have legal concerns about something you’re writing, consult a lawyer.
The two chief legal issues for writers are libel and invasion of privacy. Libel is the authorship of a false statement in a permanent medium (such as print or the Web) that damages someone’s reputation. It differs from slander in that slander pertains purely to oral defamation in an impermanent medium, such as speech, while libel pertains to defamation in a permanent medium.
Although the application of the law may vary by jurisdiction, there are typically four key tests that determine the course of a libel action:
- The statement must be false. True statements are not libelous.
- The statement must be unprivileged—that is, it must be made to someone other than the person concerned. It is not libelous to make a defamatory statement only to the person concerned.
- If the statement is of public concern, the person making it must demonstrate negligence.
- The statement must cause damage to the plaintiff. In most jurisdictions, the damage must be to the reputation of the plaintiff, but in some, mental anguish may also give rise to an action for libel.
Some jurisdictions also recognize “per se” defamations, which are statements that are presumed to cause damage to the plaintiff. Such statements include attacks on a person’s professional character or standing or allegations of a sexual nature. If you anticipate legal action in such a jurisdiction, it might be unwise to talk about your sister’s breast implants or your cousin’s case of the clap.
Several defenses are available against an action for libel. One is simple truthfulness. If a statement can be proven to be true, it is by definition not libelous.
Another defense is privilege—that is, the utterance of an otherwise defamatory statement in a setting where such statements are allowed, such as a legislature or a court of law. This defense would be unavailable, of course, to writers who publish their work.
A third defense against libel is opinion. In some (but not all) jurisdictions, a statement of opinion, as opposed to fact, cannot be considered libelous. The definition of opinion can be complex, however, as it often depends on context. For example, in a jurisdiction that observes the distinction, a stranger accusing you of thievery would not be held responsible for libel, on the grounds that a hypothetical reasonable person would consider this statement an opinion. An employer or other acquaintance making the same accusation, however, would be held responsible for libel, on the grounds that the same reasonable person would consider this statement to have a factual basis.
Some jurisdictions have eliminated the distinction between fact and opinion, however, and hold that any defamatory statement that could be considered factual would uphold an action for libel.
A final defense against libel concerns fair comment in a matter of public interest. For example, if a public official becomes embroiled in scandal and you profess your own belief in the allegations, that statement would not be considered defamatory.
Invasion of privacy is the public disclosure of private facts, or more specifically, the disclosure of facts that are not of public concern and whose release would offend a reasonable person. In most cases, I assume invasion of privacy would concern sexual matters, although there may also matters a reasonable person would wish to keep private. Truth is not considered a justification for invasion of privacy.
Privacy is an important issue for memoirists and family historians. Exploring the personal and private aspects of a life—our own life or someone else’s—lies at the heart of our vocation. It also points to a dilemma. If you write biography, your job is to be both searching and compassionate. A writer who reveals only commonplace matters is superficial; a writer who disregards all concerns for privacy is disrespectful. And are the facts we reveal the only important issue here? Or is the manner in which we divulge them also important?
What do you think?
© 2012 – 2014, Andy Kubrin. All rights reserved.
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