Everyone wants to avoid being sued. Litigation is expensive, time-consuming, and incredibly stressful. Most writers don’t have much to worry about. The odds that they’ll end up in a courtroom for something they wrote are fairly low. Our First Amendment right to free speech offers significant protection to write freely. One exception to this rule is the world of memoir.
The reason the memoir genre is compelling is because it’s fascinating to read the dirty details of others’ lives. Memoir authors usually don’t write about rainbows and sunshine, they write about the salacious. Abuse, sex, addiction, and family drama—it’s the Sturm und Drang that people want to read about. This is the primary reason why memoirs open the door for lawsuits.
There’s a fine balance when you’re writing your memoir. Of course, it’s your story, and as such, you want it to be told without barriers. Yet, you need to consider those you’re writing about. They may not want to be part of your story. And, in some cases, if you violate the law, they may have the right to retaliate with a lawsuit.
We can all agree that there are better things to spend your book royalties on than exorbitant legal fees. Read on for tips to avoid going from published author to professional despondent. (Note: Our first disclaimer—this article does not constitute professional legal advice. For real legal advice, consult your real live counsel, rather than looking things up on the Internet.)
1. Case Study: Running with Scissors
Since we’re discussing legal issues, it seems fitting to start with a case study on the issues of memoir, defamation, and invasion of privacy.
Critically acclaimed author Augusten Burroughs published the best-selling memoir, Running with Scissors in 2003. In his book, he recalled his time living with the fictional “Finches.” His book recounted abuse, drug use, dysfunctional family behavior, living in squalor, and other unsavory details any family wouldn’t want blasted all over printed pages.
Burroughs claimed that while he did change the name of the family (in real life, the Turcottes), the harrowing details of his time spent in their care were true. The Turcottes filed a defamation and invasion of privacy torts suit against Burroughs and his publisher. The family asserted that Burroughs fabricated facts and violated their privacy.
Burroughs’ defense hinged on his assertion that the facts, as he wrote them, were true; therefore he had not broken any laws. The parties settled out of court. As part of the settlement, Burroughs changed his acknowledgments to say the Turcottes had “conflicting memories” of the described events. Burroughs was legally obligated to amend his book acknowledgments to read as follows:
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.
2. Understand the Concepts
The best defense is a good offense. In litigation that means don’t do anything that will get you sued. Before you publish your memoir, it’s important that you understand your rights to free speech, as well as defamation and invasion of privacy issues.
First Amendment Protection
The First Amendment protects your right to free speech. This protection applies to both the spoken and written word.
In short, defamation is when you ruin a person’s reputation. Black’s Law Dictionary defines defamation as, “The taking from one’s reputation. The offense of injuring a person’s character, fame, or reputation by false and malicious statements.” The term covers both libel (written) and slander (spoken).
Only living people can sue for defamation, so someone can’t file a lawsuit against you for defamation through an estate or relatives.
Invasion of Privacy
Invasion of privacy lawsuits hinge on public disclosure of private facts. Private facts are sensitive information that the average person would not want to share with the general public; for example, medical records, adoption records, abuse, alcoholism, etc. Just as with defamation, an invasion of privacy suit can’t be brought by an estate or relatives. Even if what you write is 100% true, someone can still bring an invasion of privacy suit based on public disclosure of private facts.
3. Preventing a Defamation Cause of Action
The best defense against defamation is the truth. Suppose you write that your neighbor was convicted of axe murder. He can’t bring a defamation suit against you if he was, in fact, convicted of axe murder. But if you write, “my neighbor could be capable of axe murder because he’s crazy,” then you’ve got some defamation issues.
Practical Tips to Stay Out of Courtroom:
If your facts will not hold up as 100% true in a court of law, you can open yourself up to defamation. Before you write, make sure to check your facts. You want to know that if you’re writing about something controversial, that you’re not fabricating the truth.
The second tip to avoid defaming your memoir characters is to frame controversial statements as your opinion. Opinions are (*usually) legally considered “protected expression.” That said, there are parameters. You can’t simply state that blatantly false statements are opinions and get away it. Writing, “In my opinion, Sara Smith is a prostitute”—when Sara Smith is an upstanding mom and doctor—will get you in trouble. Your opinion needs to be balanced by evidence and supported by actual fact.
The third tip to avoid defamation issues is to change any identifying information about your book characters. In order to prevail in a defamation case, the defamed must prove others are able to identify him from your writing. A caveat: This doesn’t mean by name alone! People can claim defamation if one could reasonably identify them through their actions, clothing, quotes, physical appearance, address, or any number of identifying points.
The fourth tip is that defamation rests upon subjective principles. When in doubt, err on the side of caution about disclosing details that may or may not be true. If you can’t defend the truth in a court of law, don’t publish it.
The final tip is to print a disclaimer in your preface, intro, or acknowledgements. Simply by stating your memories are imperfect but you’re sharing to the best of knowledge and that you’ve changed identifies can stave off legal woes.
4. Avoiding an Invasion of Privacy Cause of Action
Just as with a defamation lawsuit, an invasion of privacy lawsuit turns on subjective opinions to be decided on a case-by-case basis. This means that the individual facts of each case will decide the outcome.
Common sense dictates that there are certain private facts, which a person would not want shared with the public. If a good friend had given up a child for adoption, and you were the only person she told, then disclosing that in your memoir would open the doors to an invasion of privacy lawsuit. The same would apply to sensitive information such as private health matters, abuse, addiction, or any information would not be readily accessible to the public.
Certain public or high profile individuals may have less protection against invasion of privacy. The legal theory is that because they have opened their lives to public scrutiny, then the bar is lower for privacy protection. If unsavory facts can be classified as public interest, then you may be able to disclose certain things about public individuals. The crux of this issue would turn on whether your facts are related to a matter of “public concern.”
Practical Tips to Stay Out of the Courtroom:
There are several ways to avoid invasion of privacy lawsuits. Our first tip is to get written permission from your characters. If you obtain written consent, they can’t later file a suit stating you’ve breached their privacy.
Our second tip is the same as with defamation: Change all identifying characteristics. Give your characters a different name, different job, different wardrobes—anything you can change to prevent them from being recognized by your words affords you a degree of protection. Some writers like to create an amalgam of characters to mix up identifying facts.
Our third tip is tell the truth. Don’t lie (or even embellish). It’s unethical at best; at worst, it can get you in legal hot water.
Our fourth tip is carefully weigh the impact of disclosing inflammatory, sensitive, or embarrassing information. Are such disclosures essential to your story? If so, tread carefully and use our rules for how to proceed with caution. If you’re on the fence, it’s always wise to run your concerns by a lawyer to head off any issues before you publish. Paying for an hour or two of legal time is far better than being a defendant in a court case.
The best memoirs are brazen, open, and honest about life, even when the facts are tough to write about. Your obligation as a memoirist is to tell your story and honor the truth. By considering the impact of those in your real life and making efforts to protect them, you’ll avoid legal troubles down the line.
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