So, you’ve decided to write your story—good for you!—but you’re struggling with how “honest” you should be. I get it: you don’t want to cause hurt feelings, but you also want to avoid being sued for libel. And, yet, you want to write your story as you see your story.
The complicating factor when you are writing your story is that it usually involves other people (unless your memoir is focused on self-imposed solitude of sorts). And those other people are real people, despite being treated as characters….real people who may have opinions on how their character counterparts are conveyed in your story.
So, how do you avoid a potential lawsuit and yet maintain creative power?
If your story is a contentious one, where the fallout could be quite damaging (think: abuse memoirs, criminal intent, infidelity), I cannot recommend enough that you consult an attorney before you publish your story. They’ll be able to advise you on your rights and what you are responsible for.
I’m not a lawyer, so I will not go into the specifics of the law, but with memoir, you are trying to avoid what is called defamation, which basically means ruining a person’s reputation based on falsities. This term covers both written (libel) and spoken (slander).
But we’re talking memory here and isn’t that subjective? This is why we have professionals who can advise you on the specifics because it can get complicated quickly.
Assessing Hurt Factor
The amount of hurt a memoir writer risks can range, on the scale of hurt feelings:
- low (usually 1-2 incidents detailed in your book): Your neighbour might get upset because you wrote about how they leave scrapyard all over their lawn, which you feel is an eyesore.
- medium: Someone you went to school with might not be thrilled that your story paints them as a bully during your high school years.
- high: Your uncle may not like that you disclosed his gambling addiction to the world.
The hurt factor has a direct link to libel because it’s mostly those high hurts that you want to be careful of (although you can be extra safe by assessing those mediums, too). It’s rare that a low hurt will turn into a lawsuit.
How do you avoid possible legal action while still maintaining the integrity of your story? Here are 4 ways that you can protect yourself against libel:
- Get Your Facts Straight
If you disclose a particular action about another person, make sure it actually did happen. If an ex-boyfriend of yours was charged with assault, for example, make sure that, first, it actually did happen and wasn’t just a rumour (court records are open to the public for adults), and, second, that you know 100% what it was that he was charged with and how he was found.
- Be Subjective
Okay, wait. Didn’t you just say to get my facts straight? (I did.) How does that work with subjectivity?
Answer: Some things you just cannot prove.
For those areas, you can achieve subjectivity by using phrases such as I believed…, I felt…, I thought…, I heard anger in his voice…, etc.
Such phrases place the owness for the emotion/result on you, rather than the other person. You can hear anger in someone else’s voice, even if they aren’t angry. Both statements can be true. The person still may not like how you interpret their behaviour/intentions, but you should be safe from the courtroom.
This tactic works very well for dialogue, too. Rather than putting words in a person’s mouth, you can own your interpretation of what they said. There’s a huge difference in quoting a person and in summarizing your perception of a conversation.
- Change Identifying Details
Here’s where you can change a person’s name, gender, and/or appearance. Brown-haired “Jarod” can become blond-haired “Michael.” You’ll want to change enough details so that the person cannot be identified. Simply changing “Jarod” to “Michael” but still saying he was the son of the mayor of your town will not be enough to protect Jarod’s identity.
Changing identifying details also works in respecting a person’s privacy. Say, for example, a good friend of yours confided in you years ago that he was thinking of leaving his husband, but they’ve since worked through their problems and are happily married now. Bringing up this conversation might do severe damage to your friend’s marriage, especially if your friend’s husband is not aware that his spouse once felt this way—is your book worth that? If they are vital to your story, make sure you change enough identifiers that it can’t be traced back to the real-life person.
- Provide a Disclaimer
It’s always a good idea to note the subjective nature of your story in your introduction. Memories are subjective, so a blanket statement about how this is your story, your perceptions, your recollections, etc. is a smart idea. A friend of mine who, at the time, had recently divorced her husband once told me, “There’s my side, there’s his side, and the truth is somewhere in the middle.” Two people can witness the same event but have a different take on what unfolded.
Your memoir presents your side only.
Engaging your “characters”
If you have a healthy relationship with the person you are writing about, the best thing to do is talk to them. Gage their reaction when you say, “so I’m writing a memoir….” You could even ask them if they’d prefer you to use their real names or change their identity. I also recommend you ask the person to sign a waiver, granting you permission to include them in your memoir and outlining the particulars. You can frame this as a way to protect them, just as much as it is about protecting you. You can get these waivers notarized by a lawyer, if you wish.
If you do not have a healthy relationship with the person you are writing about, your best defence is a proactive offence (meaning, change all identifying factors and consult an attorney, if necessary).
The people in your life become characters when you put them on a page. Make sure they are developed—well described, with clear motivation and reason for being in the story. Putting some thought into how real-life people will react to their portrayal in your story will save you a lot of heated phone calls, texts, and possibly time in court. Use your creative license to change details of your story to protect yourself, as well as the people in your life…but remember: at the end of the day, this is your story, and there’s a lot of power in owning it.
If you’re interested in learning more about memoir and the memoir genre in a group coaching environment…the next cohort for my Life Writing for Beginners Group Coaching program will begin October 25. If you’d like one of only 5 spots, please reach out!