When people right their autobiographies or memoirs, they may recount stories that others do not wish to share. While the first amendment provides for the freedom of speech, this right is not absolute. Simply because a person deems something to be “nonfiction” does not make it true. Individuals who do not like the way that they are being portrayed may have legal claims against the author.
Defamation
One such claim that may arise is defamation. Defamation occurs when one person damages the reputation of another by making false statements about him or her. Proving defamation requires that the plaintiff, the person alleging the wrongdoing and damage to his or her reputation, show that the author made a false statement of fact that identified him or her that was published and damaged his or her reputation.
Truth is a defense to an allegation of defamation. Simply because the story may look unfavorable on a person does not provide this individual with an actionable defamation claim. Additionally, the defamatory language must be that of fact. It cannot simply be a person’s poor opinion of another person. Instead, the defamatory statements must appear to be stating the truth about a verifiable fact.
Additionally, the person must be easy to identify. This may be due to the setting, time, physical description or other factors that show that a reasonable reader would know that the story was about him or her.
The publication element is unlikely to be an issue if the nonfiction author has published the book. However, publication in legal terms simply means making the statement to one other person than the author or the portrayed individual. Therefore, even a manuscript that was reviewed by an editor or publisher could provide basis under the publication element.
Additionally, the plaintiff must be able to show that the false statement caused him or her harm. This can sometimes be difficult to prove. In some instances, making certain statements about another person provide a defamation per se claim. In states that recognize this cause of action, defamation exists and damages are provided when a person untruthfully alleges that another person committed a notorious crime, is professionally incompetent, is promiscuous or impotent or is a carrier of a deadly disease.
Invasion of Privacy
Another potential legal claim against a nonfiction author is invasion of privacy. Even if the account is completely truthful, this claim can arise when the author publicly disclosing private facts that are not related to public concern and that are offensive to ordinary sensibilities. This means that the work would not further the public interest in any manner. There is more leeway for defending these types of cases. For example, public figures generally have no reasonable expectation of privacy. Likewise, if the story recounts something that someone does in public, he or she is likely not protected by an invasion of his or her privacy.
Misappropriation of the Right of Publicity
If the non-fiction author uses the person’s appearance, name, likeness or other identifying information in order to advertise, promote or use such information for commercial purposes or economic gain, the author may be sued for misappropriation of the right of publicity.
Individuals who believe that they have been wrongfully portrayed in a biography or memoir may wish to discuss their options to remedy the situation with a lawyer and for advice on whether the claim is likely to be successful.
Copyright HG.org
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
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