Can I Get Sued for Writing About Someone?Apr 21, 2021
My First Bit of Relevant Advice: Don't Punish Through the Pen
While this is not about getting sued it is related so let me just say that It’s so important to do the internal work that's required before writing about people you resent. And one of the main reasons is that you're not going to come across as very likable. If you are hammering us over the head with how horribly you've been treated and how horrible the people were, the reader won’t have sympathy for you. However, if you are describing things that people did that are horrible and you are just merely talking about how you reacted, you are going to come across as a much more sympathetic character. And as Mary Carr said on NPR when she was asked how she handles writing about other people: “Other people are not my problem. I'm my problem. So when there's a jerk in the book, it's usually me. I mean, I'm the one that I'm wrestling with.” And that is a great thing to keep in mind.
What I Learned From Lisa Smith
I recently interviewed my friend Lisa Smith, who is a former practicing attorney as well as a best-selling memoirist. And I don't think I should need to say this, but what I'm about to say does not substitute for legal advice. You cannot run into a court of law with this and say that Anna said this was okay.
Still, defamation, which includes libel and slander, is probably your greatest concern. But there's a defense against it and it is the truth. Lisa gave this example; if you say in your book that someone stole money from you, and then the person comes out and sues you for writing that and says you damaged their reputation, you can say, "But you did" and that is a defense.
But we live in a society where anybody can sue anyone for anything and often they do. So I highly recommend erring on the side of caution. You have to ask yourself, Do you really want to have to resort to that kind of defense? Do you really want to have to get a lawyer and deal with that hassle? A person can say “I got fired from my job and cost me all this income.” And it is going to be such a headache that if there is somebody who is particularly litigious that you're writing about, do everything you can to not write about them, or at least to protect yourself.
How to Protect Yourself
The easiest way to protect yourself is to change descriptive characteristics, change the facts, maybe change what someone does for a living, change the color of their hair, change things so that these people will not be identifiable. When Party Girl was going for its legal review, the lawyer said to me, “Make sure there are more than five people that fit this description so that nobody can come forward and say, Hey, this was me.”
I highly recommend, if possible, talking to the people who are going to be in your book and letting them know, “Hey, I'm writing about this. I want you to know.” If you are comfortable, share the pages with them in advance. It’s really shocking how people respond. You just cannot predict how people are going to respond to how they're written about—the people you think are going to be thrilled are horrified. The people you think are going to be horrified are thrilled. And I have had times where I have not shown people pages ahead of time because I was scared to and they didn't like the pages and I would have been far better off sharing those pages with them when it was possible to sort of get their feedback on them.
When it comes to people who are really good friends, just give them the option to have their real name or a fake name in the book.
You Can Always Get a Legal Review
This means hiring an attorney and having them read your book before it's published to let you know if they think there are things that you should change. There’s an organization called Volunteer Lawyer for the Arts that will do legal reviews pro bono but otherwise, it will cost at least $1000.
There’s also something called media perils insurance you can look into if you are concerned.
There's Never a Guarantee You'll Be Protected
A lot of people will say, “Well, if I write it under a fake name, then I don't risk upsetting these people.” Well, that's not entirely true. A pen name does not protect you.
And even if you change the names, you can still get in trouble. Augusten Burroughs wrote about his adopted family AND he even had a different name as a kid and yet three years after the book was published and a year before the movie based on the book was released, the adopted family came forward and sued him for $2 million. Apparently, he’d identified them by name in interviews. So they felt that they had a legitimate claim and he ended up settling and part of that settlement included renaming the genre of the book—calling it a “book” and not a “memoir” and changing the acknowledgments page in future additions to say that the family's memories of events he describes are “different than my own” and expressing regret for any intentional unintentional harm.
Another way to protect yourself is to put a disclaimer in the beginning. If you want to copy the one we put in our books, here you go:
This work is non-fiction and, as such, reflects the author’s memory of the experiences. Many of the names and identifying characteristics of the individuals featured in this book have been changed to protect their privacy and certain individuals are composites. Dialogue and events have been recreated; in some cases, conversations were edited to convey their substance rather than written exactly as they occurred.
Someone Can Object Even if They Don't Have a Case
We published a book where the client wrote about an affair she had and even though everything was out in the open, the ex-wife of the guy she had the affair with found out it was in the book when we were doing her advanced reader team and she got a lawyer and the lawyer said that this was going to hurt this woman's reputation. And so at the 11th hour, we took it out.
We also ran into a bump when we did a book for somebody on The Real Housewives and Bravo had to get involved; they had us take out the word Housewives in the title of that book and then they objected to these totally innocuous things we never would have thought they'd care about.
We had another book where the author mentioned dating and doing drugs with all these celebrities. And we just sort of said, Hey, get a legal review. Celebrities are probably too busy to care about a random book but they also have deep pockets and are somewhat unpredictable as people. So you never ever know.
Still, Tell Your Truth
I’m not saying that you can't write about people that have done terrible things. As Annie Lamott famously said, “If the people in our lives wanted us to write warmly about them, they should have behaved better.” But I am saying that you don't want to get hurt twice by them—the first time for what they did and the second time for getting in trouble by writing about it.
So proceed with caution.
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QUOTE OF THE POD:
"You don't want to get hurt twice by someone—the first time for what they did and the second time for getting in trouble by writing about it."
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