Saturday, November 3, 2012

How to Avoid Committing a Libel in Writing a Family Memoir


        Agnes Embile Jimenez is standing in for me today with an important topic for memoir writers.   She can be regularly be found at her own blog Empress Of Drac, A Cebuana Blogger.

Libel toe ring
Libel toe ring (Photo credit: Wikipedia)
How to Avoid Committing a 
Libel in Writing a Family Memoir

Even when writing a family memoir, you run the risk of committing libel and getting sued. Memoirs are written about real people. In most cases, a memoir worth writing and reading includes bad things about people that they may not want shared with the public. They just may retaliate with a libel lawsuit. In general, books are protected by the freedom of speech rights laid out in the 1st Amendment of the US Constitution. But, there is the right way and many wrong ways to write family memoirs. By not following the rules of the right way, you open yourself up to having to prove in court that you didn't commit a libel. 

What Is Libel?

The simplest way to explain the working definition for the word libel is: a false statement made in writing, which damages a living person's reputation or the reputation of an entity that's been read or published by anyone other than the person whose character was defamed. In the case of a defamatory statement that's made verbally instead of in writing, this is called slander. Once again, the statement must be false to be libel. That's why the number one things to keep in mind when writing a family memoir is that everything declared in the content must be the absolute truth. Truth is an unquestionable defense to a libel suit.

Types of Libel

There are two different types of libel. A family memoir writer needs to be careful to avoid both to win any libel suit. They are: Libel per se and Libel per quod.
·         Libel per se – This is a written statement that may or may not be true. But, taken at face value, it constitutes libel because it defames the subject's or entity's character in ways that the courts find to be unnecessary and unethical. For example: “My uncle Larry Moore, who lives in St. George, Utah and works at the Main Street University is a drug addict and a thief. He will rob anyone, including his job, to get his fix.” Even though you may be able to prove this, it's a defamatory statement that will be considered libel in court.
·        Libel per quod – This is committing libel through implication. These statements implies untruths, rather than coming right out and stating them. For example, you publish a wedding announcement in your family memoir stating: “My Uncle Larry Moore married Helena Smith”, knowing that he never married Helena and is actually married to a completely different woman. Taken at face value, this doesn't seem to be a libel statement. However, the statement implies that your uncle is a bigamist, married to two women at the same time.

The Elements of Libel

In a libel suit, you are the defendant. It's the plaintiff's duty to prove that you committed libel in order to win their case. This is done by proving that these four elements of libel were met in your memoir:
1.      A statement you made is untrue.
2.      The statement is defamatory in its meaning.
3.      The party who was allegedly defamed can is clearly identifiable in the statement.
4.    The statement is within a memoir that's been published.

Four Simple Tips for Avoiding Libel

When you publish your family memoir, it should be a time of reflection and celebration. The last thing you want is to be sitting in court being sued for libel by a family member. Here are four simple tips to help you write your family memoir without committing libel.
  1. Write the Truth – Even the smaller white lie published in your memoir can having you in court fighting a libel suit. The person this tiny white lie was written about can suffer from a defamation of their character. If everything written in the memoir is absolutely true, you lower your chances of being sued. And, if someone does attempt to sue you anyway, the truth will be your best defense for winning your case.
  2. Change the Names – Changing names of the people, places and entities in your memoir will help to protect you. This may seem as if it's a untruth. Maybe it is. But, the way this works is quite simple. Everything that you write in the memoir must be the truth, except the places and the names. If done properly, this will protect the people you've written about from being recognized by other family members, co-workers, acquaintances, employers, neighbors and anyone else they wouldn't ordinarily share personal information with about their life. You can keep the places the same, if they're integral parts of the family memoir. However, if you can, this will help to conceal the identities of those you've written about even more.
  3. Obtain Legal Advice – If you can, you should show your finished manuscript to an attorney. They will be able to give you better insight as to whether you've written something that may be considered libel. If you prefer not to use an attorney, there are other libel experts that can assist you.
  4. Get Release Forms – Either have your attorney write up a release form for you, or you can do it yourself. Have every person mentioned in the family memoir sign one of your release forms. Signing the form gives you their written permission to use their information, life history and name in the memoir. Then, if it ends up having negative consequences on them, they can't sue you for it. If they insist on reading it before signing the release form, go ahead and let them. You never know. They may decide to add some extra details to their part of the story that will make the book even more exciting and juicy.

References




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8 comments:

  1. I feel the 1st Amendment of the US Constitution may not work in the UK.... I always claim madness.

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  2. Good advice. It's nice to know some of the legal issues.

    Even when two people experience the same event, the viewpoints usually differ.

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  3. I am always careful to be truthful, but I do struggle with what might be embarrassing to surviving descendants. Does the issue of libel extend to them too, or only to the person in question?

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  4. Dear Lee, thanks for asking Ms. Jeminez to explain the aspects of libel. I found this most helpful as I am writing an on-line memoir. Peace.

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  5. Hi Lee - this is a really useful post to have up .. reminding us to be careful as we write.

    Cheers Hilary

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  6. "Even though you may be able to prove this, it's a defamatory statement that will be considered libel in court."

    This is hardly ever true. Libel per se involves FALSE statements. I think it's a little misleading to inform writers that if they say someone is a drug addict and they are, that it WILL be considered libel. No one would be able to write anything! If you have proof of the true statement (the relative went to rehab for drugs or was convicted of drug possession), you're pretty safe.

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  7. Very insightful post! Just one question: Even if a family member has an issue with something that you wrote in your memoir, but there are no identifying indicators (other than they recognize themselves in the story), the relative does not have grounds to sue for libel or slander? Thank you for sharing.

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  8. Very insightful post! Just one question: Even if a family member has an issue with something that you wrote in your memoir, but there are no identifying indicators (other than they recognize themselves in the story), the relative does not have grounds to sue for libel or slander? Thank you for sharing.

    ReplyDelete

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