How to Avoid Legal Issues when Writing About Real People

Explore this Article

parts

1Performing Proper Fact-Checking

2Avoiding Legal Issues When Writing

3Finding Legal Help

Other Sections

Tips and Warnings

Related Articles

References

Lawsuits for defamation or invasion of privacy are two of the landmines you need to avoid when writing about real people. To protect yourself, you should gain a general understanding of the law and the common-sense steps you can take to avoid inviting a lawsuit. However, you also need to realize that there are few “bright line” rules in this area. Both fiction and non-fiction writers can be sued for defamation or invasion of privacy. If you have a question, you should contact a lawyer for advice.

Steps

Part 1

Part 1 of 3:

Performing Proper Fact-Checking

1. 
   1
   Corroborate any fact. If you are a reporter, you might get a tip for an explosive story. Although you may be tempted to rush into print, you should consider confirming the facts of the story with a second source before publishing.

   • Sometimes people leak false stories because they have a vendetta against the person. You should corroborate the main facts of the story with a second independent source.
   • Take good notes of your fact-checking and document all facts. Keep a log in which you write the date you contacted someone, the number you called, and details about what the person said.
2. 
   2
   Get a comment from the person you are writing about. If you intend to publish a potentially defamatory statement, then ask the person for a comment. You don’t have to publish the response, though it could help you.

   • If you write an article or book, you can share a draft with any real person you have written about. Ask them if they would recommend changes.
   Advertisement
3. 
   3
   Check if the information has been disclosed before. Someone can sue you for disclosing private facts that are embarrassing. However, you can defend yourself if those facts are already in the public realm. Do research to see if the information you intend to publish has already been published.

   • Look at people’s social media accounts. These are often a treasure trove of personal information about someone.
   • Document what you find. Print out web pages or download photographs that show the information has been publicly disclosed.
4. 
   4
   Get consent from the subject of the story. You can always publish something if you get the person’s consent. Try to have them sign an interview release form. The release form should include the following information in the body of the release:

   • A grant of permission to interview: “I [insert interviewee’s name] hereby give permission to [your name] to interview me and record my voice.”
   • Permission to publish the information gathered in the interview: “I further hereby give permission for [insert your name] to use, reuse, publish, and republish the same in whole or in part for any lawful purposes in any and all media, including print, the Internet, and broadcast media, and to use my full name in connection therewith.”
   • A release from liability: “I hereby release all right, title, or interest in and to all or any part of my tape-recorded or transcribed interviews and declare that they may be used without any restriction whatsoever and may be copyrighted and published by the said party or entities designated by said party.”
   • A signature line. Remember that minors (those under 18) also need a parent or guardian to sign.
   • Get a witness to sign. A release is always stronger if you have a witness sign it as well.
   Advertisement

Part 2

Part 2 of 3:

Avoiding Legal Issues When Writing

1. 
   1
   Change identifying details about a person. You can protect yourself by describing the person in such a way that other people can’t recognize who you are writing about. Make sure that you change more than one or two details. For example, if you are writing about a professor of Russian literature at a local university, you shouldn’t just change her hair color. Instead, you should think about changing:

   • age
   • profession
   • time
   • place
   • physical description
2. 
   2
   State clearly that you are offering an opinion. You are protected from a defamation claim if you offer an opinion instead of a statement of fact. Some statements are obviously opinions—“he is the dumbest person in the world” is obviously an opinion since no one would assume that you know everyone in the world.

   • However, to protect yourself, make sure to preface your statements with “In my opinion…” In this way, you can flag to the reader that you are offering an opinion.
   • You might draw your opinion from certain facts in the public record. If so, then provide a link or citation to those facts.
3. 
   3
   Exercise caution when writing about criminal acts. You should always be careful before accusing someone of a crime. Unless you have public records showing a person was convicted in court, you should avoid using language like “crook,” “corrupt,” “cheat,” etc.

   • You can also harm the reputation of businesses, so you should be careful before writing that a business has engaged in illegal or unethical conduct.
4. 
   4
   Use government sources. You are safer using government sources than information from private citizens. If possible, take information from court records, public documents, or government reports. You are less likely to be sued for invasion of privacy if you gather information from these sources.
5. 
   5
   Identify your sources. You should be careful relying on confidential anonymous sources. If you are sued, then you face a choice—reveal your source (and break your promise of confidentiality) or not reveal your source and have the court assume you are lying. Neither is a good situation. If possible, identify your sources. Also quote them accurately.

   • Also make sure that you identify their position or title when you identify them in your article.
6. 
   6
   Check that headlines are not misleading. You can be sued for misleading or false headlines and captions. Although the body of the story might describe the facts more fully, headlines and captions themselves can be misleading.
7. 
   7
   Include disclaimers. If you are writing a novel, then you might want to include a disclaimer. For example, you should include the following disclaimer in a work of fiction:

   • “This is a work of fiction. Names, characters, places, and incidents are the products of the author’s imagination or are used fictitiously. Any resemblance to actual events, locales, or persons, living or dead, is entirely coincidental.”
   • Using a disclaimer does not provide 100% protection. However, it can help establish that a reasonable person would understand your work was fictitious.
   • You can also provide a disclaimer if you are writing a memoir. For example, you should state that you are writing about your memories and that other people might have conflicting memories.
8. 
   8
   Determine your risk level. The truth is that anyone can sue you for almost anything, no matter how frivolous. Being sued does not mean that you will lose the lawsuit. In fact, you have strong First Amendment rights to protect you. You can win many lawsuits even if sued.

   • For example, authors almost always win defamation suits involving fiction. Over the past 30 years, nearly every lawsuit brought for defamatory statements in fiction has been dismissed before ever going to trial.
   • However, you might be very risk-averse. If you want to avoid any possibility of a lawsuit, then you shouldn’t write about real people. That is the only way to be 100% certain you won’t be sued.
9. 
   9
   Issue corrections or retractions if necessary. No matter how careful you are, you might still make errors in your reporting. If you are contacted about errors, you should issue corrections. If the error goes to the heart of a story, you might need to retract the story.

   • When someone calls, be polite. Avoid admitting an error. Instead, take down the person’s explanation for why the story is inaccurate and say you will look into it.
   • By retracting a false statement, you can usually reduce the likelihood that you will be sued.
   • Make sure a retraction is given sufficiently prominent position in your paper or on your blog. Don’t bury retractions so that they are hard to find.
   Advertisement

Part 3

Part 3 of 3:

Finding Legal Help

1. 
   1
   Meet with a lawyer. You should always meet with a lawyer if you have questions about whether or not to publish something about a real person. The lawyer can advise you about your risk of a lawsuit and also suggest ways of rewriting the material. You can get referrals by visiting your local or state bar association.

   • A bar association is a professional organization of lawyers. You can find your nearest bar association by visiting the American Bar Association website and clicking on your state.
   • You also might want to talk to other writers. Ask if they have ever consulted with a lawyer and, if so, whether they would recommend their lawyer.
2. 
   2
   Find nonprofits who provide free legal help. Some organizations provide free legal services to journalists. You can find the nearest legal aid organization by visiting the Legal Services Corporation’s website and entering your address.

   • The Reporter’s Committee for the Freedom of the Press runs a Legal Hotline journalists can use. Call 1-800-336-4243 between 9:00 am and 6:00 pm Eastern Standard Time.
3. 
   3
   Gain a basic understanding of defamation law. Before publishing, you should have a basic understanding of defamation. Generally, you defame someone when you publish a false statement that injures the person’s reputation and you had no right to publish it.

   • Accordingly, truth is an absolute defense to defamation. If you are sued, the person suing you will claim the statement is false, so you will need to rely on your fact-checking to establish that it is true.
   • If you are writing about a public figure, such as a celebrity or a politician, then you can only be held liable for defamation if the statement is false and you either knew it was false or suspected it was false but were reckless in not checking its accuracy. This is called “actual malice.” Consequently, you can escape liability if the statement is false but you made an attempt to find out if it was accurate. You can produce your fact-checking log to show you tried to confirm the truth.
4. 
   4
   Understand invasion of privacy claims. Whereas defamation injures someone’s reputation, invasion of privacy causes unacceptable embarrassment by violating their right to be left alone. There are many different types of invasion of privacy claims a person could bring. They differ from defamation in one key way: you can be sued for invasion of privacy even if you didn’t make a false statement about someone.

   • You can be sued if you publicly disclose private facts about someone. The facts must have been private (not disclosed before) and they must be offensive to a reasonable person. Furthermore, the facts cannot be newsworthy. For example, showing video of a woman’s c-section birth without her permission probably constitutes invasion of privacy.
   • You can be sued if you represent someone in a “false light.” For example, illustrating a story of child molesters with a stock photo can create a false impression that the person in the photo is a child molester. Unlike with defamation, you didn’t make an explicit, false statement that the person is a molester; however, you created that false impression in the reader’s mind.
   • You can be sued if you appropriate someone’s likeness or name without permission. You can’t, for example, claim that someone endorses your product without their permission. You can’t say that a celebrity is a dedicated reader of your newspaper even if he is, in fact, a subscriber.
   Advertisement

Expert Q&A

Search

Add New Question

Ask a Question

200 characters left

Include your email address to get a message when this question is answered.

Submit

Advertisement

Tips

• This article describes tips writers in the United States should take and is based on U.S. law. Other countries are less protective of the rights of authors. You should contact an attorney with questions.
  Thanks

  Helpful0Not Helpful0

Advertisement