When first setting out to write a memoir, autobiography or biography many authors face the challenge of whether to use actual names or not.
This discussion will primarily focus upon the stories of every-day people rather than famous; infamous or well-known personalities. The latter will be touched upon later.
Why the concern?
The question usually arises where an author intends to include critical or negative aspects of a person’s life or behaviour within their manuscript. They may be worried about:
- Upsetting relatives, friends or colleagues.
- Exposing those associated with the personality (family and friends) to public embarrassment and criticism.
- Opening the individual, even where it may be deserved, to possible public retaliation or humiliation.
- Making themselves vulnerable to possible litigation. (Tends to the primary concern.)
Note: It is possible for some of these issues to arise even when there is no intended criticism.
As may be seen from any casual peruse of social media discussions, concern regarding the use of true names frequently arises. And, the primary concern tends to be about the possibility of being sued. Consequently, before looking at possible methods to circumvent such a possibility, the varying types of litigation will be considered.
For most people, the mere mention of litigation brings to mind thoughts of: ‘Defamation of Character’; ‘Slander’; ‘Libel’; and ‘Invasion of Privacy’.
Defamation of Character
It should be noted ‘Slander’ and ‘Libel’ are aspects of ‘Defamation of Character’. They have no legal standing in their own right.
‘Slander’ is where someone makes a defamatory ‘verbal’ statement to a third party.
‘Libel’ is where someone makes a defamatory statement in a form other than verbal e.g. written, pictorial, etc.
For a ‘Defamation of Character’ case to be brought to court the statement has to be proven to have been false and to have resulted in some sort of ‘harm’. Such harm may be: to reputation; financial (loss of income, business, customers, etc.); mental or physical distress (insomnia, depression, anxiety, health, etc.); the creation of a presumption of guilt (e.g. an accusation of rape, etc.).
Note: Defamation is not always against an individual. It can be against a: business; product; group; government; religion; nation; and so on. Authors should therefore ensure they consider all aspects before going to print.
Invasion of Privacy
This includes: Loss of; unauthorised access to; disclosure of; personal information. Publishing details of a person’s life could be construed as an ‘Invasion of Privacy’.
Though not mentioned above, an accusation of ‘Malice’ may arise where the person making or publishing a statement considered defamatory has: done so though they knew it to contain false information; or has recklessly disregard the truth. The burden of proof lies with the person defamed but, if proven, would be very serious for the person who made the statement (The author).
Naturally, if an author has serious concerns, or even if they do not, the best approach is to obtain the individual’s permission/agreement to the inclusion of information/details about themselves. However, great care should be exercised. It has been known, where such agreements have been obtained, for the person to change their mind when they see the information in actual print. The possible consequences are obvious.
Where someone is willing to give permission/agreement, it would be wise to obtain it in a written, dated, signed, document. Preferably signing should be in the presence of witnesses who also sign the document in that capacity. Obtaining legal advice regarding the validity of such a document is recommended.
If an author is sure of their information and is not concerned about creating bad feelings or relationships, they may publish. However, if they intend to clearly name and describe the individuals involved, they are advised to consult a legal professional; to ensure they are not opening themselves to possible litigation. Law can be a complicated matter that requires clear and accurate interpretation.
As previously said, if deformation is to be proven, the statement in question has to be shown to be untrue. The onus to bring a case is upon the defamed person. Nevertheless, even if an author is able to prove the authenticity of their statement, defending it can be very expensive; lawyers, barristers, court expenses etc. Most independent (indie) authors simply do not have the resources. In some instances, it may be possible for such a case to be made the subject of a small claims court but even these have some expense attached. In addition, it may not be possible to satisfactorily prove the matter without a lawyer.
An alternative many authors utilise is to, either omit names or use unidentifiable pseudonyms (fictional names). Alongside this, physical and character descriptions are also omitted or changed, sufficiently to ensure someone may not be identified by default.
Some may ask whether omitting or altering such information will make the book less authentic or valid. In the writer’s opinion: no. Unless a book relies upon the identification of well-known or famous personalities (more about them later), such changes will make no difference to a reader’s comprehension of, or enjoyment of, a memoir, etc. The writer has read several memoirs where this approach has been taken and confirms it has never spoilt the read for them.
Where this approach is utilised, an author should also be aware of the impact it may have upon their own identity. Would publishing under their own name result in the potential for those mentioned being identified? Would including a photograph of themselves have the same impact? In most cases it probably would. They should therefore consider publishing under a nom de plume (pen name). Of course this would also require them to market the book under the same nom de plume, which may limit the initial reader audience e.g. by not being able to tell relatives, friends, colleagues about its existence unless they wish to take those, they are sure they can trust, into their confidence. This will also have implications for social media identities but most provide for authors using pen names.
A public figure is usually someone who is voluntarily in the public eye e.g. politicians, actors, television hosts etc. However, some become public figures by default e.g. those the subject of high profile court cases; athletes; etc. Though the latter, in some instances, may appear unfair, for legal purposes the person may still be defined as being a ‘public figure’.
Some ‘public figures’ have brought cases for ‘Deformation of Character’ however, in most instances the ruling has been: As a public figure, their rights to privacy are lessened. In other words, their rights in respect to ‘Invasion of Privacy’ are diminished. Of course, they may still be able to bring a case where a statement is blatantly false.
Naturally, some memoirs, autobiographies etc. deal with, or rely upon the inclusion of, well-known, famous or infamous public figures. By default, they have to be identified. If the author has checked the accuracy of the information, there should be no problem provided they take into account all available advice e.g. legal.
Any author who intends to include derogatory information regarding a public figure would be advised to seek legal counsel. A high profile case could easily end with them being made bankrupt. Public figure reputations are often ‘worth their weight in gold’ consequently, unless the critical information is correct, it is in their interest to decry any accusation of mean, immoral, criminal, etc., behaviour.
The above has been primarily based upon an author including critical/negative information within a book. However, there have been instances where no negative comment has been made and yet the subject of the encounter has objected to their inclusion. This, in the true spirit of the law, could be defined as ‘Invasion of Privacy’. Again, if it is intended to identify the person, authors would be wise to seek permission in the same format as explained above.
Traditionally, laws have not provided for relatives to bring a case for Defamation of Character in respect of a deceased person. This is because defamation is considered to be personal, consequently any ‘harm’ is against the individual. In addition, if a person who has brought such an action passes away during the proceedings, the case, currently, automatically falls by virtue of the same principle.
HOWEVER, there are those who are arguing for the law to be reviewed. So far, no firm ruling has been made because some are concerned about the possible impact such a change may have upon freedom to write about, and discuss, historical events. Nevertheless, the discussion continues with a few, who feel strongly about the matter, pressing for amendments to laws to be enacted.
Another point authors must consider: If a statement considered defamatory against a deceased person is also seen as impinging upon the reputation of a relative or acquaintance, that person may be able to sue.
It has to be said, out of common decency, an author should not see the fact someone is deceased as granting them carte blanche to write whatever they want.
In all instances, no matter the circumstances, an author must always take care and ensure their information is accurate. An author should never assume because the person being talked about has passed-on they are safe from any litigation.
There is no denying writing a memoir, autobiography or biography, can be a bit of a minefield. Authors really do need to take care. Legal advice is the best path but, as most indie authors are short of funds, may not be viable. The alternative of pseudonyms is the most realistic approach for the majority and has been successfully utilised by many authors.
Authors need to remember; even if comments are not critical or negative, there is no automatic protection against litigation. They must be sure of their facts.
Authors also need to be on their guard against seeking retribution. For example, all books in this website (the ‘Books’ page contains full details), are either abridged autobiography or biographical fiction which, frequently detail unpleasant and cruel events. However, the author is not a vindictive person and, though some may deserve to be exposed, it would be unfair to their relatives, decedents, friends and acquaintances, to expose them all to public embarrassment, humiliation or possibly worse. The omission of identifiable details and use of pseudonyms has protected them though this has had a negative impact upon publicity, marketing and consequent sells. Nevertheless, a clear conscious is far more valuable than gold.
Disclaimer: The writer (T. R. Robinson) has no legal training. The above information is either a matter of common knowledge or has been gathered, primarily, through research though some, especially expressed concerns, has been the subject of on-line, social media, discussions.