As a writer, the story you choose to tell – and how you choose to tell it – is solely your province. It’s one of the reasons you write. While it’s a rare occurrence in the world of fiction, if your story includes real, living people (and remember that in our country, corporations are people too), you may be at risk of a libel or invasion privacy claim. Understanding the legal limitations imposed on your fiction will provide some guidance for dancing around the potential dangers.
In Georgia, libel is “a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” In addition, falsely accusing someone of sexual immorality, of criminal behavior, or of being infected with a contagious disease such as Ebola or HIV/AIDS may give rise to a claim of defamation per se, and the claimant doesn’t even have to prove any damages. For any libel claim to be successful, the defamatory work must be published.
Authors should also concern themselves with avoiding a claim of invasion of privacy rights. Georgia recognizes the four common law claims for invasion of privacy:
- intrusion upon solitude or seclusion, which typically involves spying on someone;
- public disclosure of private facts, by publishing private or secret information about a person that is offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances;
- appropriation of name or likeness; and
- “false light,” where false information is spread that depicts the person in an untruthful and highly offensive manner to a reasonable person.
The First Amendment gives great latitude to write most anything about most anybody, but state law serves to protect those who may have been legally damaged by such writing. Bear in mind that with few exceptions, you can’t libel the dead and their right to privacy expires with them. So how do you write around a living person in order to avoid a claim of libel or invasion of privacy, whether or not the claimant may ultimately prevail?
Recognize your motivations. Are you using the story to settle a score against the person? If a diary entry won’t satisfy your vendetta and you feel you must paint the person in a negative light (remember that truth is an absolute defense to a libel claim, but not to a claim of public disclosure of private facts), then render the person as unrecognizable as you can possibly muster. Change as many of the person’s salient details as makes reasonable sense: the name (obviously), location, age, physical description, background, occupation, sex and/or ethnicity, as well as the person’s relationship to other characters that may serve to identify him.
For a cautionary tale, see Bindrim v. Mitchell , a 1979 California case that illustrates the challenges of disguising the character’s real-life identity while also retaining the essential elements of the story you want to tell. The writer must exercise considerable care to distance a fictional character with negative character traits or behaviors from the real individual who inspired the character.
Character names are important, right? Choose a name that doesn’t suggest the real person’s name; e.g., Larry Moon shouldn’t be renamed Harry Sunn.
Disclaimers are no guarantee of vindication, but it doesn’t hurt to include one at the beginning of your novel (e.g., “Any resemblance to actual events, locales, or persons, living or dead, is entirely coincidental.”). However, if there’s evidence that the resemblances are not entirely coincidental, a disclaimer will not help. The disclaimer does give your attorney something to hang his hat on when arguing to the court that your work is presented as fiction; under the law, a reasonable reader would have to understand the statement about a person as a “false and malicious defamation” regarding a fact for it to be libelous. A “fact” is not a fact if it’s fiction.
You may possibly insulate yourself from liability where the fiction is so preposterous or far-fetched that no reasonable reader could possibly conclude that the defamatory statements were statements of fact, even if the reader might associate that character with a living person. Check out Pring v. Penthouse (yes, that Penthouse), where the Tenth Circuit Court of Appeals concludes there was no defamation, no matter how morally repugnant the story itself, where certain salacious descriptions of the fictional exploits of a Miss America contestant could not possibly happen in real life.
If you have any doubts, questions or concerns, discuss them with your editor or the in-house legal counsel of your publisher or with private counsel. Often it just takes a bit of rewriting to resolve potential libel fiction issues with little detriment to your story line.