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When Truth Is No Defense

by Daniel Steven

     One of the questions I frequently receive is "May I use real people, or characters based on real people, in my writing?

     Well, maybe. As with so much in the law, there is no simple answer. When you write about real, live people you expose yourself to legal liability -- even if you tell the truth. And simply changing the names is no solution if the person can be identified by circumstances, appearance, or setting. Yes, disclaimers may help, but you can't rely on them.

     There are essentially three types of "real persons" protected by the law -- living ordinary people; living public figures (celebrities) and, in some states, dead public figures. Using any of these in your writing involves the intersection of defamation law, privacy law, and the right of publicity. In only one of the three (defamation) is truth always a defense. Let's look at each:

     1. Defamation. Defamation is written or spoken injury to the reputation of a living person or organization. Injury to reputation generally is considered to be exposure to hatred, contempt, ridicule, or financial loss. Libel is the written act of defamation; slander is the spoken act. This distinction is important; libel often has greater legal consequences than slander. Whether libel or slander, the defamation must be published – communicated to someone other than the subject of the defamation. Truth is an absolute defense to defamation: if what you say is true, it cannot be defamatory.  Another defense to defamation is proving that the statement was an opinion, not an assertion of a fact. In nonfiction, always state the facts and your opinion separately. WRONG: "My co-worker John Doe is a filthy cheat." This is defamatory: an unproven, pejorative ("filthy" and "cheat") statement about a private (non-public figure) individual. INSTEAD:   "I saw John take five toner cartridges from the supply closet and put them in his car."

     In fiction writing, the Supreme Court interprets the First Amendment to hold a publisher liable for publishing a defamatory statement only upon a showing of negligence. A plaintiff in a defamatory-fiction lawsuit must show that the publisher of a defamatory statement knew or should have known that a "fictionalized" character was objectively identifiable as a real person. Public figures have an even higher standard: they must show that the defamatory statement was published with "actual malice." (Keep in mind that if the statement is true, it is not defamatory).

     2. Right of Privacy. Privacy law is not a separate, distinct area of law as are property or contracts. It is "common law" (court-made, not legislative), unique to America, and varies from state to state. In general, privacy law consists of four distinct "torts" or legal wrongs: intrusion upon seclusion; appropriation of name or likeness; public disclosure of private facts; and publicity placing a person in a false light. Generally only the latter two -- public disclosure of private facts, and "false light," are relevant for writers.

     Public disclosure of private facts occurs when a writer discloses private and embarrassing facts about a living person that are not of "public concern." First Amendment rights protect publication of items of legitimate pubic concern, such as the details of a crime. Ask yourself, is the story newsworthy? If so, the public's interest in knowing about the incident outweighs the privacy factor. If, however, the matter is not one of public concern, and is one that most people would find highly offensive, there is an invasion of privacy. For example, publicizing the fact that your brother-in-law has failed to pay his mortgage for three months, although true, would be an invasion of his privacy. Other examples would be details of a person's sexual problems, physical or mental ailments. Problems often arise when writing about a real-life event: in such cases, you should obtain written releases from the "ordinary people" who are only peripherally involved with the newsworthy event.

     Matters of public record are not protected by privacy law. If a writer publishes a story disclosing facts obtained from a police publication or a court opinion, the matter is of public record and no lawsuit will be successful.

     Public figures (politicians, movie stars, professional athletes, etc.) have a somewhat lessened right to privacy because of the public's legitimate interest in their affairs. For example, a magazine may publish a profile of a politician without fear of being sued for invasion of privacy. The story can even include private facts about the public figure, but care must be taken that these otherwise private facts are within the scope of the story.

    "False Light" privacy lawsuits occur when a writer publishes facts about a person that creates a deliberately false and misleading impression. Examples include when a newspaper publishes a story about convicted felons and includes the name or photograph of an innocent person, or when, in a story about a hate group, the writer includes the name of a person not a member of that group.

     Once again, there is an different standard for when the published material is in the public interest or about a public figure. Even if the published material places the public figure in a false light, the public figure must prove that the publisher acted with malice or with reckless disregard for the truth. Thus if a newspaper publishes a false allegation that a politician accepted a bribe, but never attempted to verify the allegation, it could be sued for placing the politician in a false light.

     False light privacy claims often arise under the same facts as defamation cases, and therefore not all states recognize false light actions. There is a subtle difference in the way courts view the legal theories -- false light cases are about damage to a person's personal feelings or dignity, whereas defamation is about damage to a person's reputation.

     3. Right of Publicity. Most states now have laws that protect living celebrities, and in some states, recently dead celebrities like Elvis Presley, from the commercial exploitation of his or her name, likeness, or persona. News stories, biographies, and fiction, however, are protected by the First Amendment. To the extent you portray a celebrity in such works without defaming him or his family -- and it is absolutely clear your work is fiction, news, or biography -- you need not seek the celebrities' permission. You would, however, need permission to exploit purely commercial "spin-offs" of your work, such as t-shirts or posters. (In some cases -- like that of Elvis -- issues of trademark and copyright are also involved.) In general, however, if you are using a celebrity as a character in anything other than a cursory or purely factual way, it's often best to write and seek permission.

     If you have any doubt about the use of real names in your work, consult an publishing attorney BEFORE publication.

© Daniel Steven 2002

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© 2006, Daniel N. Steven
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