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The Truth, the Whole Truth,
and Norhing but the Truth…Sort of
If you are writing your memoirs, how can you get into trouble? It’s your memory of the events that counts, right? Well, not so fast.
You may be writing that amusing family legend – you know, the one about your silly aunt who stole money from her mother’s purse a week before her senior prom? And who then used that money to buy a 1965 Mustang from her boyfriend’s best friend who acquired it under Mysterious Circumstances? And showed up at the prom with axle grease on her dress because she couldn’t drive a stick shift?
Unfortunately, what your father told you about the family legend may or may not be true. And if it’s not true, you have accused your aunt of theft, which is a crime and therefore potentially defamatory. Defamation is a state-specific law, but most states follow the general rules about this tort. A false statement must have been published about the alleged victim. The alleged victim must prove that the false statement caused injury to his or her reputation, although under some circumstances (like being accused of a serious crime), proving that an injury occurred may not be difficult or might not even be required. The writer must have been negligent in making that statement (in the case of a private person) or have “actual malice” in making that statement (in the case of a public figure).
In determining whether the statement was made about a particular alleged victim, the courts will use a “reasonable person” standard. This means that, if you attempt to disguise the true identity of your silly aunt but your cousin “knows” who you are talking about, the court will have to decide if a reasonable person would agree with your cousin. If yes, the court would then review the other parts (called “prongs”) of defamation to determine whether you have committed this tort.
Ok, so let’s assume your favorite aunt would not create a problem…. What about that boyfriend’s best friend who acquired the car under Mysterious Circumstances? Even peripheral characters in your non-fiction work need your careful attention to avoid these issues.
What about a First Amendment defense? The First Amendment is a very strong protection for all writers. However, if you have signed a publisher’s contract that has indemnification and hold harmless language, your publisher may choose to settle with a claimant rather than going to the expense and trouble of protecting your interests in a lawsuit.
Nothing contained on this page should be construed as providing legal advice or creating an attorney-client relationship. All information herein is intended as educational only. For advice specific to your situation, please contact an attorney of your choice.