Writing About Public Figures? In-between Defaming and Glorifying

(Re-Published From LinkedIn By The same Author)

“Real life has a lot to teach, significant,powerful,painful events. Fiction narrative inventions pale in comparison with even the most typical human conditions. Real life events are stronger than fiction, more frightening,more distinctive, and more awesome.”- Cirilo Bautista

As a Rookie, I was undecided, what kind of writer should I be? what category should I choose? I asked myself, while basking under the sun one chilly November day in late 1996.

Through the Years I have written about People, travel, arts, culture some hard news, wrote columns in Provincial/National Publications and just recently tried my hands in Information Technology. But, the most compelling written word that I have ever placed on paper is about lives and sagas of public figures up close and personal, mostly biographical.

I only write and publish what the subject allowed me to put on record, if it is off the record then I do so.

Barely a year after I published my first National publication; I was battling a libel case against an Action Star in Manila, for an unpublished Biography. Baffled and stunned and chased around by the National Media, I asked my Lawyer, But its a Biography! Its Non-fiction what am I being sued for? Exactly why you are here right now, because it’s non-fiction He replied.

A Biography is a literary form about the sagas and Lifetime work, Waterloos and successes of a person usually famous, it is also historical in nature. The dilemma comes with researching firsthand & second hand information, how much of the truth should be written, worst case scenario; A Libel suit or be accused of defaming the subject, there is a thin line between defaming and glorifying intentionally or not.

Writing about Humanity is a tasking job. When one writes nicely about someone or something, they will call it “marketing and PR” and be accused of getting bribed for it; if one writes in hard news they say the same.

To “storify” a public figure as you write, landscapes their saga, you are sharing their moments and the thrills of their victory, mourning with them in times of agony and defeat, you are shouting them out to the world.

You either win a friend or foe and land in jail. You may make or break them in a blink of an eye.

To avoid Brush ins with the Law or Anyone who’s famous take a few tips from Amy Cook:

So what can you do to protect yourself? Your best defense is to understand — before you publish your work — the legal issues that apply when you’re writing about real people: namely, defamation and invasion of privacy.

Understanding Defamation
Defamation is when you injure a person’s reputation; in legal speak, it’s when you “lower them in the estimation of the community or deter third persons from dealing with them.” It’s a false statement of fact. Only living people can sue for defamation; heirs cannot make a claim about a deceased relative’s reputation.

The allegedly defamed person must prove that he is identifiable to readers by the setting, physical description or other factors. Changing someone’s name and physical description is a good start, but it isn’t necessarily enough to prevent a lawsuit. Truth, however, is always a defense to a defamation charge. As long as you can prove your ex cheated on his taxes, he cannot sustain a defamation claim.

What if you don’t have proof? A defamation claim can be based only on something stated as fact — so, the good news is that your opinions are protected expression. That said, don’t think simply couching your accusation as opinion — “It’s my opinion that John Jones deals drugs,” or, “I believe Sara Smith embezzles from her employer” — is an easy out. Any such opinions need to be clearly relevant to your story, and should be supported with viable evidence or reasoning.

DISCLAIMING CONFLICTING MEMORIES
Sometimes truth and fact aren’t always black and white. Memoirs are people’s recollections about events in their lives, and we all know that people can remember situations and conversations differently without purposely intending to deceive anyone. This is where a good deal of legal wrangling in memoirs has originated.

In 2005, the Turcotte family filed a lawsuit against August en Burroughs and his publisher, St. Martin’s Press, alleging defamation and invasion of privacy. The Turcottes said they were the basis for the Finch family Burroughs lived with and subsequently portrayed in his bestselling memoir Running With Scissors, and claimed the book contained fabricated or sensationalized descriptions of events.

Burroughs defended his work as accurate, but in the settlement, agreed to call it a “book” rather than a “memoir” in the author’s note (though it’s still referred to as a memoir on the cover, title page and elsewhere), and to recognize in his Acknowledgments in future editions the Turcotte family’s “conflicting memories” of events.

The Acknowledgments changed from: “I would like to thank each and every member of a certain Massachusetts family for taking me into their home and accepting me as one of their own,” to, “I would like to thank the real-life members of the family portrayed in this book for taking me into their home and accepting me as one of their own. I recognize that their memories of the events described in this book are different than my own. They are each fine, decent and hard-working people. The book was not intended to hurt the family. Both my publisher and I regret any unintentional harm resulting from the publishing and marketing of Running With Scissors.”

If you know you’re delving into disputed territory, consider addressing it in a similar way in an author’s note on your own volition. It could save you the expense and hassle of being forced to do so later.

CHANGING IDENTIFYING DETAILS
Changing names and descriptions may not be enough if other details give away who the subject really is. And this doesn’t just apply to memoir, either. In a famous case where a novelist created a character based on a real person, she changed his name and physical description, but not much else. The author, Gwen Davis Mitchell, had attended a “Nude Marathon” therapy session in which participants shed their clothing in hopes that psychological inhibitions would go along with it. (Need I mention that this was California?) Prior to attending the session, Mitchell had signed a contract pledging she wouldn’t in any way disclose what had transpired. After the book, Touching, was released, Dr. Paul Bindrim sued the author and her publisher for defamation, saying that the character Dr. Simon Herford was clearly based on him, that colleagues identified him as Herford, and that his words and actions during the sessions had been inaccurately depicted.

Mitchell’s character was described as a “fat Santa Claus type with long white hair, white sideburns, a cherubic rosy face and rosy forearms,” whereas Bindrim was cleans haven and had short hair. In ruling in favor of Bindrim, the court said the only differences between the character and the man were physical, and that otherwise they were very similar.

The author had tried to defend herself by citing another case in which a fictional character was based on a real person — but in that situation, there had been other differences, including age, profession, and time and place. That story had not significantly paralleled the real person’s life, so even though the plaintiff believed he’d been libeled, the court determined no one would be able to tell that the character was based on him. These are the types of changes you should employ any time you’re making embellished, disputable or untrue claims based on a real person, whether you’re writing a novel, a memoir or anything else.

Understanding Invasion of Privacy

Even if everything you write about someone is completely true, you still need to consider her privacy. Invasion of privacy occurs when you publicly disclose private facts not related to public concern. As with defamation, only living people can sue for invasion of privacy.

In the case, Kaysen was sued by an ex-boyfriend over her 2001 autobiographical book, The Camera My Mother Gave Me, which accused the man of offensive sexual behavior and (in the words of the judge) “culminated with the suggestion that he raped her.” The man, even though he’d been unnamed, said his reputation suffered because friends and business associates could identify him. But ultimately the court stressed the book was Kaysen’s story — saying she was “more than a disinterested party,” which gave her extra First Amendment protection.

There are two significant lessons here. One is the importance of a publisher’s backing as part of the criteria for establishing public interest. The second is the fact that more leniency is given to those telling their own stories involving unsavory aspects, as opposed to a third party, such as a journalist, who might trigger stronger invasion of privacy allegations.

PROVING PUBLIC INTEREST WITHOUT A PUBLISHER

We’ve talked about how courts have found that “a legitimate public interest” exists by the mere fact that a traditional publisher selected that book or article to publish. It may be circular reasoning, but there it is. Your story has interest to the public because an established media company has decided it has interest to the public. But what if you go the self-publishing route? There is no independent third party that agrees that your story has legitimate public interest prior to publication, so be aware that public interest may be more difficult to prove if you find yourself facing an invasion of privacy lawsuit.

So how can you demonstrate public interest if you’ve self-published your memoir? If your book sells well, that could lend weight to your defense. A market for comparable titles also could demonstrate public interest in your subject matter in more general terms. If you’re considering self-publishing and are worried about protecting yourself against invasion of privacy claims, peruse the shelves at the bookstore. If similar events have been written about and released by traditional publishers, you’re probably in the clear.

At the other end of the spectrum, if you self-publish without sales goals in mind — if your book reaches only, say, a few dozen people — then the bright side is that you probably won’t get sued.