Nonfiction Writing: Being Mindful of Defamation and Privacy Rights
Fiction vs. Nonfiction
Art has been referred to as the “perfection of nature.” A novelist puts pen to paper and creates a new world in which characters, locations, and events exist for the sole purpose of telling an imagined or theoretical story. These stories can be pure fantasy, loosely based on the author’s experiences, or explore relationships and the human experience through fictional characters.
In contrast, non-fiction writers and authors who pen autobiographies, memoirs, biographies, and biographical novels are writing what they believe to be true about specific events and experiences. As such, they must stick to provable facts, avoid character defamation, and write in a manner that protects the privacy of nonpublic figures.
Defamation and Privacy
According to the MLA Style Guide for Scholarly Publishing, “In law defamation is a published false statement of fact about a living person that exposes the person to public hatred, ridicule, contempt, or disgrace, induces an evil opinion of the person in the minds of others, or deprives the person of friendly relations in society."
An invasion of privacy can be claimed when there is an unreasonable intrusion on a person’s seclusion, a person’s name or likeness is used without permission for the purposes of trade, unreasonable publicity of the person’s private life and/or publicity that depicts a person in a false light.
Although libel laws are set and enforced by each state or country, authors cannot be sued for statements of opinion. Neither can they be sued for telling the truth. However, the MLA notes "Belief in the truth of an offending statement is different from the ability to prove the truth of such a statement."
You are, after all, free to tell your own story, but you are not free to tell other people’s stories. When non-public people are named, referenced in, or can ultimately be identified by your readers, you must be able to back up your writing with provable facts.
Traditional publishing houses employ teams of people who carefully fact check and pre-approve all content they publish based in part on an assessment of risk and potential revenue. Since Lulu is a self-publishing company, you are assuming all risk as both the author and the publisher of your work.
But, how can you tell your story and avoid this nightmare of litigation? Well, first you should familiarize yourself with the law in your state or country. If anyone you write about lives in a different state or country, you will also need to familiarize yourself with the libel laws in that locale. Therefore, if you are in doubt, consult a lawyer before publishing your work.
When interested parties dispute nonfiction works based on defamation or privacy rights, Lulu must remove that work from availability unless or until the dispute is clearly resolved. Lulu’s action does not prevent you from publishing your story through another publishing site or traditional publishing house.
For additional information:
Peering at Privacy in Creative Nonfiction by Kaylene Johnson
Three Important Privacy Issues in Memoir by Tracy Seeley