Liability is an issue even for the best of writers (Part I)
Published: December 11, 2007
All cursed be
Who sueth me.
--Marjorie Kinnan Rawlings, 1946
Recent media reports about a lawsuit brought against an Orlando parent who wrote negative information about her child's private school placed the issue of liability on the front burner for all writers. Even Marjorie Kinnan Rawlings was sued by a woman who claimed damages from the Florida author's characterization of her in the book Cross Creek. Liability, not just for what you write but also for using excerpts from works by others, is a dangerous pitfall, especially for self-published writers and bloggers who often publish without the benefit of an editor to vet what appears in print. The best defense to a legal battle that can be both time-consuming and expensive is knowing what might provoke a lawsuit in the first place.
What a writer considers reportage may be called slander by others. Aimee Bissonette is an expert with a unique perspective. She teaches, she writes and she also works as an attorney primarily in the areas of copyright, trademark and rights licensing. "Defamation--libel and slander--is a claim that the writer has published mistruths about a living subject," Bissonette said in an e-mail interview. "Reporting is truthful, accurate and makes use of personal information about subjects in order to educate readers or provide commentary, not to harm or 'out' subjects."
Sharing information is an objective of many who write content on pages at social networks like Facebook or others who blog about bad personal experiences. Publishing online can be particularly risky because of the potential scope of the audience. "Stakes increase when someone publishes information online," said Bissonette. "The potential audience is so much larger, and information is not easily deleted once posted. Potential plaintiffs who might not sue over a print article may be much more likely to sue when the audience is everyone on the Web." An angry subject you've written about isn't the only pitfall. Other issues include violations of privacy, harassment and/or terrorist threats.
If you work a day job, there's another consequence. If your employer is unhappy with your online conduct, you could be fired.
With the abundance of celebrity-related print publications and Web sites, a writer may think celebrities are fair game. It's wise to carefully consider information that may be construed as negative, especially if you're quoting someone else. "It depends on how the writer handles the quote," says Bissonette. "The writer isn't the one making the statement, and individuals in the public eye are entitled to less protection in this instance than private individuals. Public figures and celebrities must prove actual malice in order to prevail on defamation claims." But the writer can't use untrue statements by others without consequences. "The writer can certainly be sued if he publishes something blatantly ridiculous or something he knows is untrue, even if it's a quote."
So how do you proceed if you think you've got a super scoop about exploits of the rich and famous? First, it helps to understand the meaning of defamation. If you publish a false statement about a living person, and what you write leads to ridicule, hatred or contempt of that person, or if you damage the person's reputation, you may face charges of defamation. If you defame someone orally, you've committed slander. If you do it in writing, you're at risk for a libel suit. The writer has a small advantage if the subject is famous, because, says Bissonette, "Public figures and celebrities must prove actual malice in order to prevail on defamation claims." Private persons, however, do not have to do this.
Options do exist if you're in hot water over what you've written about a person. "Truth is an absolute defense to claims of defamation," says the attorney. "Another defense is that the statement was merely opinion, although many attempts to disguise defamatory statements as opinions have failed because such statements can still cause damage to reputation."
Asked for her best advice on the subject, Bissonette says, "In a nutshell, stick to the facts!" Also ask yourself a question. "Is it possible to omit the subject's name, profession, and/or description and not affect the integrity of the report?" If it isn't possible, she says, consider how much information about the subject is necessary to the article. Other good questions to ask yourself include whether any of the information disclosed is harmful, embarrassing or protected by a nondisclosure agreement. And perhaps the most important question of all is whether any of the information you've included is untrue.
Rawlings faced trial in 1946 on the basis of the way she characterized a woman in her community. The woman claimed invasion of her privacy. Bissonette reminds, "Numerous legal claims can be asserted against writers who include details of other people's lives without permission, as well as memoir writers who overstep the bounds of the permission they obtain." The claims vary depending on whether the subject is living or dead, whether the subject is a public figure or private citizen, and whether the written account is "highly biographical or fictionalized." And even if what you write is true, if you highly embarrass someone or cast the person in a "false light," you may face problems with the same invasion of privacy issues Rawlings faced more than half a century ago.
While no writer's pen should freeze over legal issues, it's important to remember the responsibility that comes with publishing. "Writers must take pains to portray their subjects accurately and fairly when creating works that include details of other people's lives," Bissonette explains.
In addition to careful treatment of information about others, issues about excerpting material written by others as well as claiming authorship of work you didn't write are also vital issues in today's marketplace.
Making mistakes about legal implications may cause a writer to comprehend the full impact of the power of the pen--those mistakes may cause the bank account and reputation to suffer in the process.
Aimee Bissonette is a Minnesota lawyer, teacher and writer who works primarily in the areas of copyright, trademark and rights licensing. She currently is writing a book for Corwin Press on the legal issues associated with technology in K-12 schools. Web: Little Buffalo Law & Consulting
--Dec. 11, 2007
In the second part of this look at liability issues, Web Savvy brings you advice from Bissonette about fair use and other legal issues for writers.