When you are writing nonfiction, particularly about people who are still living, it’s worth giving some thought to some of the legal issues which might arise.
Most questions which arise about the portrayal of a person in nonfiction are based on one of two legal questions:
- Defamation: A person may claim that the book contains falsehoods that hold the subject up to scorn.
- Invasion of privacy: Legal expert Howard G. Zaharoff told Writers Digest that a person mentioned in a book has “The right to avoid disclosure of truthful but embarrassing private facts…” The issue here is not the truth of what is reported, but whether it is “not related to public concern.”
Both are potential issues. Even when a person portrayed in the book is dead, his family members might claim either defamation or invasion of privacy.
Before I examine how you might avoid issues arising from either legal claim, I need to offer a disclaimer. I’m not a lawyer. If you have serious concerns regarding the issues discussed here, you should consult a lawyer prior to publishing. The money you spend to do it can save a lot of headaches (and dollars) later.
Okay, here’s some non-lawyerly advice.
- Stick to the truth. Nobody can claim defamation if you are truthful in what you say.
- Don’t report facts that may cause damage. This is where invasion of privacy issues arise. Somebody claims that something you said, even though true, is private and shouldn’t have been included.
- Get a written release from anyone who is included. It’s a good idea to let people who will be included know that they are in the book. Many times authors let people read the book before publication. If they have a problem with anything they see, you can make changes to address the issue.
- Disguise the identity of the people you include. This involves not only changing names, but possibly physical appearance and other details to prevent them from being recognized.
Using disclaimers can help avoid problems. Let the reader know that you have changed some of the names and why. In addition, memoirists sometimes use disclaimers to indicate that the story is told from their point of view and that others may remember the events differently.
Augusten Burroughs who wrote the bestselling memoir Running With Scissors got sued by the foster family that took him in as a kid and whom he portrayed in the book. As part of the settlement Burroughs and his publisher included the following statement in subsequent editions of the book:
Additionally, I would like to thank the real-life members of the family portrayed in this book for taking me into their home and accepting me as one of their own. I recognize that their memories of the events described in this book are different than my own. They are each fine, decent, and hard-working people. The book was not intended to hurt the family. Both my publisher and I regret any unintentional harm resulting from the publishing and marketing of Running with Scissors.
Taking the time to anticipate problems before they arise and acting to make sure that they don’t can make your book’s publication go much more smoothly than when issues pop up after the fact.