{"id":6336,"date":"2017-01-19T01:00:29","date_gmt":"2017-01-19T08:00:29","guid":{"rendered":"http:\/\/thewritespot.us\/marlenecullenblog\/?p=6336"},"modified":"2017-01-15T15:34:41","modified_gmt":"2017-01-15T22:34:41","slug":"a-memoir-is-not-a-voodoo-doll","status":"publish","type":"post","link":"https:\/\/thewritespot.us\/marlenecullenblog\/a-memoir-is-not-a-voodoo-doll\/","title":{"rendered":"A Memoir is Not a Voodoo Doll"},"content":{"rendered":"

\"helen-sedwick\"<\/a>Guest Blogger, attorney Helen Sedwick, writes:<\/p>\n

Memoirists are the bravest of writers.<\/h3>\n

In exploring the journeys of their lives, they delve into the private (and imperfect) lives of others. Can a memoirist write about surviving abuse without getting sued by her abuser? Can a soldier write about war crimes without risking a court-martial?<\/p>\n

Yes, but a cool head is key.<\/p>\n

Considering the thousands of memoirs published each year, there are relatively few lawsuits. Claims are difficult and expensive to prove. Most targets don\u2019t want to call attention to a matter best forgotten.<\/p>\n

However, it\u2019s important for memoir writers to be aware of the legal risks. You can\u2019t avoid risk 100% of the time, but you can learn to take the ones that are important to your narrative arc and minimize those that are not.<\/p>\n

What is Safe Territory? <\/strong><\/h3>\n

You may write about a person in a positive or neutral light. For instance, you don\u2019t need permission to thank someone by name in your acknowledgments or to mention non-controversial information, such as the name of your fifth-grade teacher.<\/p>\n

You may use historical names to establish context. If you are writing a memoir about the summer of 1969, you may mention Neil Armstrong and the moon landing and talk about your crush on Cat Stevens or Grace Slick.<\/p>\n

You may speak ill of the dead. Claims of defamation and privacy die with a person.<\/p>\n

When to Start Worrying?<\/strong><\/h3>\n

When you are publishing information about identifiable, living people and that information could be seriously embarrassing, damaging to their reputation, or subject them to public hatred and score, then you need to consider the risks of defamation<\/strong> and invasion of privacy<\/strong>. I am not talking about portraying your mother-in-law as bossy; I am talking about portraying your mother-in-law as a drug dealer.<\/p>\n

Here\u2019s a quick summary of United States law<\/strong>. (The laws of other countries are more favorable to the targets.)<\/p>\n

Defamation<\/strong><\/h3>\n

To prove defamation, whether libel<\/em> for written statements or slander<\/em> for spoken ones, a plaintiff (target) must prove all<\/strong> of the following:<\/p>\n

False Statement of Fact:<\/em><\/p>\n

If a statement is true, then it is not defamatory no matter how offensive or embarrassing (although privacy issues must be considered, as I discuss below). Opinions are protected because they are not \u201cfacts.\u201d If you post a restaurant review stating a meal was so bad you gagged, that is an opinion. But one restaurant critic was sued for saying a stringy steak tasted like horsemeat. The plaintiff claimed the reference to horsemeat was a statement of fact and not a colorfully stated opinion. Satire is not defamatory if the absurdity is so clear that a reasonable person would not think the statement is true.<\/p>\n

Of an Identifiable, Living Person, Group, or Company:<\/em><\/p>\n

A defamatory statement must contain sufficient information to lead a reasonable person (other than the target) to identify the target. Typically, the target must be a living person, but organizations have sued for defamation. Oprah Winfrey was sued by a group of Texas ranchers after saying she had sworn off hamburgers because of mad cow disease. (Oprah won the case.)<\/p>\n

That is Published<\/em>:<\/p>\n

One person (other than the target) must read or hear the statement.<\/p>\n

Causes reputational harm:<\/em><\/p>\n

The statement must be more than offensive, insulting, or inflammatory. It must \u201ctend to bring the subject into public hatred, ridicule, contempt, or negatively affect its business or occupation.\u201d Statements involving crimes, loathsome diseases, professional incompetence, corruption, impotence, or promiscuity are automatically considered harmful.<\/p>\n

Made With Actual Malice or Negligence:<\/em><\/p>\n

If the target is a public figure, then the target must prove the statement was made with actual knowledge that it was false or with a reckless disregard for the truth. If the target is against a private individual, courts generally require some carelessness or fault by the writer.<\/p>\n

Invasion of Privacy Claims<\/strong><\/h3>\n

Even if you publish the truth, you may still be sued for unauthorized disclosure of private facts if you disclose private information that is embarrassing or unpleasant about an identifiable<\/em>, living person<\/em> and is offensive to ordinary sensibilities and not of overriding public interest.<\/p>\n

Private Information: <\/em><\/p>\n

The target must have a reasonable expectation of privacy. Any conduct in public is not protected, particularly today when everyone carries cameras in their pockets. Conversely, there may be issues your family doesn\u2019t talk about, such as your uncle\u2019s drinking problem, that are not private if your uncle has been convicted in public court of DUIs.<\/p>\n

That is Offensive:<\/em><\/p>\n

The disclosure must be more than embarrassing; it must be so offensive that it harms a person\u2019s personal and professional reputation. Typically, these cases involve incest, rape, abuse, or a serious disease or impairment. Sex videos have triggered a number of suits.<\/p>\n

And Not of Public Interest:<\/em><\/p>\n

Even if the information is highly offensive, courts often decide there is no legal liability if the information is of public interest. Public interest does not mean high-brow or intellectual. Gossip, smut, and just about anything about celebrities is of public interest. Frequently, courts find stories of abuse and incest to be of public interest if they are disclosed by the victims. Judges and juries are not sympathetic when the perpetrator makes a privacy claim.<\/p>\n

And Unauthorized.<\/em><\/p>\n

You can avoid these issues by getting permission from people appearing in your memoir. An email will do. But avoid giving someone the right to approve your manuscript. It\u2019s your story. If your sister remembers the past differently, she should write her own memoir.<\/p>\n

Other Privacy Limitations<\/strong><\/h3>\n

Ask yourself whether you are subject to other limitations.<\/p>\n