Whether writing fiction or memoirs, we writers are constantly encouraged by the literary community to mine our own experiences, relationships, and observations for writing material. As I write this post, the old adage “write what you know” comes to mind. Yet in the context of libel in fiction, “write what you know” may not be the best advice. How then do you create fictional characters based on real people and not land in court?
What is Libel?
Usually we hear the term libel when a gossip rag damages a celebrity’s reputation by printing false rumors of a derogatory nature like a sexual escapade, or an embittered lover tweets about his famous ex-paramour’s heroine addiction. But libel in fiction happens too, as well as in memoirs and works of non-fiction. Thankfully, for writers, the success rate for libel suits tends to be low. Even so, no writer wants to spend time and resources defending themselves against a claim of defamation. Where’s the fun in that?
Libel is defined as the publication of a false statement that injures a person’s reputation (as opposed to slander, which covers the verbal form of defamation). Defamation laws are in place to remedy reputational harm from one of the most unique hallmarks of being a U.S. citizen, the personal liberty of Free Speech. The statement must be false and factual (unlike opinions which provide writers with some legal wiggle room as noted below). The defamed person need not be identified by name. The writer need only use enough identifying information in creating the fictional character so that the real person is identifiable to readers. The real person must be living to sue for defamation (the dead cannot suffer reputational harm). Business entities and small identifiable groups (like a lacrosse team) can be defamed too. And there must be some degree of fault by the writer (like malice, reckless disregard, or negligence).
Here is the general rule writers should follow when creating fictional characters based on real people: 1) do nothing to disguise the fictional character based on the real person, and avoid depicting them in an unsavory manner; or 2) substantially disguise the fictional character so readers cannot identify the connection to the real person, then be as defamatory as you want. The problem arises when the writer does not disguise enough so the connection between character and real person is easily linked, or he wrongly assumes the real person will not consider his statements defamatory.
If you find yourself subject to a claim of defamation, your best defenses would be truth, opinion, or parody/satire.
1. Truth is a complete defense to a defamation claim – no false statement, no libelous statement. Even if minor inconsequential facts are incorrect, libel doesn’t exist if the overall statement is true.
2. Opinions are protected (because opinions are neither true or false). This defense, however, can be tricky to navigate. Just because you say it is your opinion will not keep the statement from being defamatory. Merely implying a false statement can be enough. “In my opinion, she is an alcoholic” is just as defamatory as “she is an alcoholic.” These issues often arise with memoirs and biographical works. The best way to utilize this defense is for the writer to provide in their work the underlying facts on which the opinion is based, like she was convicted of a DUI, and then went to rehab.
3. Parody and satire genres exaggerate material for comic effect, which is not considered to be true or a statement of fact.
How to avoid a libel claim?
1. The obvious starting point is to disguise the character so there is no connection to the real person. Change the character’s sex, ethnicity, name, residence, age, physical traits, odd quirks, personal background, familial connections, profession, friends, time, setting etc. The more unsavory your character, the better you should be at disguising any identifying detail that will link the character or company to the real life person or corporation. Changing the name and physical description is not enough. What you are attempting to achieve is a character that does not significantly parallel the life of the real person the character is based on. Same for a business. Use common sense when justifying the risk. If you create a fast food restaurant that sells beef tainted with mad cow disease, make sure that company does not appear to be based on a real fast food chain.
2. Do not use a name that suggests the real person or entity.
3. Use a disclaimer or a nicely written acknowledgement. One of my favorite books is Running With Scissors. In 2007, Augustine Burroughs settled a defamation suit filed by a family depicted in his memoir. He agreed to call his work a book instead of a memoir, and acknowledge that certain real families portrayed in his book might have memories of the events that differ from his. While disclaimers can help, it does not prevent readers from identifying the real person and the defamatory statements, and often will not shield a writer from liability.
4. Wait until the real person is dead. Be careful, however, you do not defame someone related – the wife of the dead man you claimed was head of a family-run meth lab may bring her own defamation suit.
5. As tempting as it might be, do not use your novel as revenge. If you think readers will recognize the real person whom you used to create the negatively portrayed character, layer in as many fictional details as possible to distance the character from the real person.
6. Don’t publicize the fact you’ve used the person as your character inspiration. I once heard a writer state her method for avoiding defamation was to give her ex-boyfriend small genitals, claiming, “He’d never admit the character was based on him.” While far-fetched facts help a writer’s argument that no one would believe the character and real person are one in the same, admissions like the above do not help.
7. If you’re writing a memoir or a biography, document your fact-finding and keep copies for proof that you have not made negligently false statements. Tape recordings are the best when interviewing. Next to that, contemporaneous notes (all of which should be dated, signed, and the place and source identified).
8. Releases/Written Consent – Get a signed release from the real person you used as the model for your fictional character, or for those you write about in your memoir or biography.
9. Retractions can be useful under the right circumstances. Some states have retraction statutes, but these generally apply to newspapers, radio stations, and magazines. There are a few cases that involve online defamatory statements and the use of retractions to minimize damages. Retraction statutes do not generally apply to book publishers and could, if used, be considered an admission that the statement was false and defamatory.
10. Do not assume your publisher will take care of litigation that arises because of your book. Most publishing contracts require indemnification for defending defamation and privacy claims based on your work. The onus is on you to avoid any legal snafus when it comes to such claims.
11. If you are still worried about risky content in your work, use your publisher’s legal department or consult your own publishing lawyer to review your manuscript.
Other Related Points
Invasion of Privacy
The truth maybe enough to deflect a claim of defamation, but Invasion of Privacy may apply. Usually, Invasion of Privacy occurs when:
1. Private facts that are not of public interest are disclosed;
2. There has been intrusion into a person’s secluded life; or
3. Someone is portrayed in a false light, i.e. highly offensive to a reasonable person.
For Invasion of Privacy to apply, the injured person must be living. Normally, the injured person has a reasonable expectation the facts would be private. Public figures and celebrities usually have trouble proving Invasion of Privacy because their lives are of public interest and there is less expectation of privacy. Leniency is given to a memoirist for disclosure of facts in his own stories versus a journalist or biographer telling someone else’s story.
Facebook, Twitter, and blogs are all petri dishes for libelous statements. Anonymity seems to bring out the worst sometimes when people think they are free to spout off anything they wish. If you’re going to tweet or post something that could be considered derogatory, make sure your facts are verifiable and the statement is true. Or don’t, and find yourself the defendant in a defamation lawsuit.
If you have questions, feel free to ask. We’re happy to help.