I recently saw Spiderman: No Way Home at the theatres. Yes, I know, the movie has been out for months, but it was worth the wait and it’s my favourite Marvel movie so far. And, as has now been made tradition, my friends and I sat through to the end of the credits, waiting on the precious post-credits scenes that would no doubt get our nerdy blood pumping. One thing I noticed, as I was eagerly waiting for the tidbits, were some of the disclaimers, namely the one stating that the story we just watched is fictional and that any resemblance to any person, living or dead, was purely coincidental. That little disclaimer got me thinking about writing.
There were a few incidences in my own life as an artist that made me think about these disclaimers in greater detail. I’m sure that I’m not alone in saying that people from my real life, past and present, frequently make appearances in my work. Sometimes, this is in the form of a fun little nod by inserting the name of one of my family members into a story, which has been a “good luck charm” (superstitious, I know). Sometimes…this is writing poetry about my abuser, or borrowing aspects of people who’ve hurt me to make the antagonists in my stories deeper and more realistic.
When I was creating my little zine (shameless plug, you can buy it here: https://payhip.com/b/OqBZG) I inserted a disclaimer similar to what I saw at the end of Spiderman because I was under the impression that I had to. Then, I decided to participate in National Poetry Writing Month (NaPoWriMo). Most of my poetry that I wrote for NaPo were about my real life and the people in it. I found myself wondering what would happen if anyone ever saw these poems. While I imagined a beautiful confrontation where I tell them that I can do whatever I want and that if they didn’t want a poem written about them they shouldn’t have acted like a-holes, that is likely not what would happen. And so the gears started turning. What are the ethics involved in writing about IRL people? How do you write about IRL (in real life) people without getting sued? Is it worth the potential drama, and what should you do if the people you’ve depicted find out and get, as the kids say, big mad?
I want to try to explore those questions today, for the other prose and poetry writers out there, and for anyone who’s just a little curious about the world of writing IRL people.
Before we look at writing about real people, we need to talk about the different ways one can write about real people. There are different genres of writing and each requires its own considerations and own ethical dilemmas. So, we will establish and define each of them before we continue.
Nonfiction: Nonfiction is a genre of literature dealing with facts and realities. This genre is pretty vast and can range from personal essays to biographies to history. The sky’s the limit. If it deals with the real world and portrays reality it’s nonfiction. This is pretty much cut and dried.
Poetry: Poetry is a little more…nebulous. It can be very hard to define, so I will do my best. I’ll use the definition in Encyclopedia Britannica, as it’s probably the simplest; “poetry, literature that evokes a concentrated imaginative awareness of experience or a specific emotional response through language chosen and arranged for its meaning, sound, and rhythm.” The Poetry Foundation also has a definition, but it is compiled from essays by various poets throughout history and is a great read but it is LONG. So, in summary, poetry often deals with the lived reality of the person writing it, and in that way writes about real people and real events. The way it’s conveyed is more artistic and less procedural than non-fiction, but in general, many poets write about themselves and the people in their life, past or present. Or sometimes future, when writing poems to future selves, future societies and future children. That sort of thing.
Fiction: Now, fiction is defined as the type of book or story that is written about imaginary characters and events and not based on real people and facts. So that seems pretty cut and dried, right? Nope! Some folks write autobiographical novels, where they essentially write about things that happen to themselves but fictionalize some of them. Like their names, or the names of the real people who appear in the novel. While most fiction writers do make up their characters, it would be folly to assume that none of them have ever put in an expy (an almost identical version of someone with their name and appearance slightly changed) of a person they know IRL.
Real-Person Fanfiction: Since we are talking about writing people from IRL, I would be remiss if I didn’t mention Real Person Fanfiction or RPF for short. RPF is as it sounds. Now, usually, the people that RPF is being written about are famous—think hockey players, wrestlers, bands, that sort of thing. Sometimes authors insert themselves or people they know into it, but this is a different sort of thing from writing about people you know IRL. However, as we are going to be dealing with ethics, it’s important to consider multiple perspectives. Do you really think that, for example, a guitarist in a band would be pleased as punch if a fan writer writes them, using their real name, as a horrible person in their story? You could find yourself in hot water here too, writer. Hopefully, this piece will turn down the stove if you ever get put in the pot.
To illustrate some of my points, I am going to lead us in a thought experiment. We’re going to pretend for a few seconds that we’re someone else. You are a novelist and a poet. You’ve been working on a collection for publication, of both short fiction and poems, about things that happened in your life. Let’s say you have an uncle. His name is Bob. Uncle Bob used to live in addiction and he did many bad things under the influence. Some of these things are things he did to you. You can decide what you are comfortable with the thought experiment uncle doing to you, but let’s say that you were a child and it negatively affected you. Since then, Uncle Bob has become sober and has become a better person. You show one of the stories in your collection to your sibling, and they ask you if one of the characters is supposed to be Uncle Bob. You re-read through the collection and yes, you’ve written an antagonistic character to be Uncle Bob. You also realize that your poetry references the things that he did. Your sibling urges you to change the work because it will hurt your parents and it could impact Uncle Bob, who your sibling points out is doing well and might be set back by your work. However, you argue that you are still affected by this and you have the right to talk about your lived experience. There’s no guarantee that Uncle Bob will read your book, but his children, spouse or employer might. Let’s look at what we can do.
First, we’re going to look at the potential ethical considerations of writing about real-life people. It’s important to examine ethics when writing and generally existing (though not to the point of being like Chidi in The Good Place).
Even if you don’t believe that, as a writer, you have an ethical obligation to your reader, if you want to write about real people you might want to be prepared to defend yourself against any arguments made by some salty folks unhappy to be cast in a not-so-favourable light. We’re going to look at ethics, privacy and power, specifically. I initially considered talking about truth, but holy crow, that would have taken six blog posts and everything would have contradicted itself. Truth is a really big concept in philosophy. So is ethics, which we’re just going to simplify by asking if we as writers must hurt people as little as possible with our work and share the objective truth, even in fiction.
Privacy is, essentially, freedom from interference or intrusion. Most people think of this as freedom from being watched, perhaps by randos on the street, perhaps by the government. They picture someone watching them with binoculars from a bush, or someone forcibly entering their room, or they picture someone going through files (of either the digital or paper variety) in the dead of night with a flashlight and stealing information about them. And all of those things are privacy concerns, but they’re only the tip of the iceberg.
In writing IRL people, the main concern is a kind of privacy which is frequently overlooked–“the right to control of access to personal information.” This kind of privacy is receiving more and more attention in the age we exist in at time of writing. This is the age of your internet service provider selling your search history to some advertising company and targeted advertising. I know my ISP is going to have fun with my data. I write horror and fanfiction. My browser history is a landmine.
To return the train to the track, this idea of privacy and the right to personal information boils down to the fact that people have the right to information about themselves and should control who has access to it. We share our personal information every day in one way or another. However, there are social norms around spreading this information farther than the conversation it was revealed in. When you have personal communication with someone, there is a level of trust there. For instance, you give personal information about your health to your doctor. Very personal information. You can assume that they are not sharing this information with others that you would be unaware of or not okay with. A doctor might need to share information with an insurance company, or with other doctors if they need to consult, or a nurse who is also responsible for your care. The same thing happens with other communication. You generally assume that what you say to someone is not repeated, unless it’s asked to be. While this might seem obvious, if this wasn’t a big deal, blackmail wouldn’t be illegal.
Now, there are limits to this. If someone is in the process of committing a crime, it’s usually assumed that they are not going to have privacy and that they are going to be reported. But, it is generally argued that sharing someone’s personal information without their consent is unethical.
The question then becomes: is it a breach of privacy to write about someone IRL?
You are going to get sick of this very quickly, but there is no one right answer. In some ways, it depends on the person. Dead people are usually considered to be fair game. Look at the mobile game Fate Grand Order.
This game features many real life historical figures, some of whom you might recognize….and all of whom are dead. I doubt that Thomas Edison, for example, gives a toss that he is literally a lion in that game and has a rocket launcher on his chest and goes on rants about electricity and American exceptionalism at the drop of a hat.
However, Barack Obama might object to being portrayed in Fate Grand Order as an underage anime girl in a poofy dress.
Here’s a rule of thumb, not based on intellectual exercise but just on common sense; if someone other than the person or someone close to the person, without knowledge of or limited knowledge of you and your existence, could read your work and deduce who it’s about, then it is a privacy violation. If they can’t, then it is not. Ethically, yes, you are still using some of their personal information, but that is based on your view of them, not on their public persona. They might not like it, but you have to decide if that means anything to you.
Let’s look at what privacy looks like in the genres we have explored.
In writing non-fiction, the people you write about are often public figures and you are reporting on things that you can prove they did, often with evidence. Biographies and autobiographies are a bit more grey, but in general, if you don’t mention identifying information, they might not like it but you’re not encouraging anyone else to violate their privacy. Often in writing nonfiction the people being written about are aware they are being written about. That’s an option you have in some nonfiction writing. Again, if they or you are a public figure they can expect to be written about as part of their role in the public eye, and you can often get permission to write about them.
In writing poetry, you are often not recounting something or someone as it happened, but the feeling around that person or event. Again, if you can’t identify the person, I would argue that you haven’t violated privacy.
In fiction, this is even easier. If you are writing a CHARACTER, and not just inserting the person into the work, then that is not a violation of their privacy, any more than writing about yourself or your spouse would be. Sometimes you can get permission to be inserted into a work of fiction—see the link to the Dinosaur King fustercluck, where a spouse green-screened their spouse into the finale of their show as the bad guy, whom they then green-screened themselves into to fight them. It’s ridonkulous.
However, when looking at RPF, things get more complicated. Some argue that it isn’t ethical because it is using a person’s information without their consent. Yes, it’s public, but it was put out in a specific context for a specific use. Others would argue that a celebrity is essentially a character and that their portrayal of the person is of the character they made themselves and the mask they wear. I think it’s somewhere in the middle. Yes, it is taking someone’s likeness without their consent. It’s legal because they’re not being paid for this usage, but they also didn’t pay for the rights to the person. A person is not typically an intellectual property, so some of the usual fanfiction issues are not present. Most celebrities portray a sanitized image of themselves that might not be true to who they are. But you, the fan, have no way of knowing that.
You can use RPF for parody, and make fun of royalty and politicians by writing wacky fanfiction about them–which has been done since time memorial. I’m not saying there’s a right or wrong here. Lord knows I can’t. But this is important to remember.
It is also worth mentioning that sending people your story about them just throws all this out the window. That, to me, is a violation of their privacy, because that takes it from writing about a public figure that they might never see to making sure they see it and know that you wrote it and that you have this information. Even if it’s not unethical, it’s weird. Don’t do that unless they have specifically mentioned that they want that.
Let’s look at Uncle Bob.
If your story had identifying information about Uncle Bob, such as his appearance, manner of speaking, personal likes and dislikes, and name, then yes, ethically that might violate Bob’s privacy. However, if your character acts like Uncle Bob but doesn’t look, sound or have his personality, then I would argue that it’s ethically fine to write about them. Everyone has a right to privacy, but most characters come from IRL in some way. It’s just the nature of the beast. To me, if you make every effort not to make your portrayal of them connected to the real person, then that is not violating their privacy, that is borrowing from real life as you do for other writing.
Another issue in writing IRL people is the issue of power. Power is a word we all know, and for the most part, we know what it means…however, putting that meaning into a concrete definition can be difficult. Power is, for our purposes, the capacity to produce or prevent change. In philosophy, this definition and view of power is usually applied to the government, but let’s look at what it means in writing.
Everyone knows that we live in a society.
In the society we live in, certain people have certain types of power and others do not. This power is given to them by the society they live in. Different societies give different powers to different people. My view on power is going to be skewed one way because I live in North America, but a European or African person will have a slightly different idea of who has power and who doesn’t.
As a writer, it’s important to be aware of your power. For example, I am a white person. I have power that a writer of colour doesn’t. My name is more likely to be pronounced correctly, and I am more likely to be published. Historically, I might have access to better education or better standards of living. I’m more likely to be listened to and have a platform. It sucks, but it’s the way of the world. So, to write a novel with a main character of colour might be considered an abuse of that power, because I am writing about an experience I did not have like I did have it and I am more likely to have my portrayal shown and a writer of colour might not, and if they were to try to call me out they might be shouted down. This is an issue in representation. I’ve written a bit more about representation before, so let’s return to power.
In a way, writing about the people who are cruel to you is taking the power back. They produced a change in you, and you are taking that experience and telling it the way you saw it, which means that you can produce a change by warning others or by allowing others to process their emotions through you. I have no issue with this. I’ll get to my thoughts later, but my main thought is that if you didn’t want to be written about, you should have treated people better. However, you might also have power over the people you’re writing about, not because of you or them and what you do and don’t do, but because society has bestowed that power upon you. This could be based on a protected class, or it could be economic power so that if they lost their job they would be negatively affected, or it could be any of the things that stratify people in society. You might not care if someone is negatively affected, and that’s on you. But I feel like most of us wouldn’t want to harm someone permanently by writing about them, no matter how badly they’ve treated us.
Again, let’s look at our genres. There is no one right answer when looking at power because everyone reading this will have different forms of power in the society they live in. This is just a ballpark guess, based on common sense and the principles of philosophy we’ve discussed.
In nonfiction, you might have power over the people you write about, depending on your role in writing about it. Writing about Ferguson? You probably have some power there. Writing about a president of the United States of America? You probably don’t. Proceed with caution.
In poetry and fiction, you might have power over the people you write about. You might not. Proceed with caution.
In RPF, this is a grey area. Celebrities have power their fans do not. They have more money and more influence by the nature of their profession. Fans are always “punching up”, so to speak, by writing about them. You could argue that the vast power differential renders writing about celebrities a perfectly acceptable activity, taking some power back in a way. You could also argue that celebrities have power relations in society outside the power their profession provides them, like being queer or a person of colour. That means that a heterosexual cisgender white person writing about them is a use of their greater power over the celebrity and therefore unethical. This is an extreme argument because I’m pretty sure that the celebrity still has more power. After all, they’re rich and have a lot of influence, no matter what society thinks of the groups they are a part of. Being white won’t help you if that celebrity gets big mad and sends lawyers after you, or their legions of fans. So…there’s that.
Let’s look at Uncle Bob. Bob is a man. You may or may not be. However, for the sake of argument and simplicity, let’s say that you and Bob are of the same race. Let’s say that due to the behaviours that occurred as a result of needing to survive living in addiction, Bob has less money than you. He cannot get a credit card and perhaps he either has a criminal record or he has a bad reputation around the place he lives. He couldn’t get a good job, and he lives paycheck to paycheck. Due to the power you have over Bob because of this, you have to consider what will happen if your book is published and is read by an employer or someone else with power over Bob. The same conclusion could be what I wrote about ethics above, it could be different. This one is deeply personal, and I cannot say what you would do with your power.
Let’s get away from the academics for a few moments. I know, I was enjoying it too. But we must move forward. Let’s say you don’t care about any of the philosophies I was talking about because philosophy is boring to you. Fair. Let’s be practical. So you want to write about a real person, philosophy off the table. Let’s look at that.
First off, I have a question for you. Why are you writing about real people? Let’s look at our genres.
Look, let’s be real; if you’re writing nonfiction, you kind of have to have real people in your writing. You’re not writing a fictional narrative with characters you’ve invented, you’re writing about a real event and therefore real people. This also depends on what kind of nonfiction writing you’re pursuing. Often, more creative nonfiction involves people that the writer actually knows or knew, such as in the form of personal essays or monologues, that sort of thing. You don’t necessarily have to name the people in those situations. However, if you’re writing about an event or some IRL phenomenon, like true crime or reporting, the real people involved ARE what makes the story. You can’t get away with not writing about IRL people if you are writing nonfiction work. Then why is because you have to. Simple as that.
Poetry is slightly more complicated. There are lots of reasons you could want to write about a real person in your poetry. If you’re expressing emotions, it could be a positive reason. For example, writing a love poem about your spouse, or a poem that is a tribute to your friend.
However, you could also be writing about someone because they hurt you. This could be something like being a bad friend, an abuser, or about your parent’s mistakes when you were growing up. The questions to then ask yourself are; are you writing out of revenge? Is it just to get out the emotions and work with them? Is it to raise awareness about an issue like domestic violence? There isn’t a right or wrong, or a good or bad answer. These are just things to keep in mind.
There are lots of reasons you could be writing about a real person in your fiction. You could be looking for details to make your characters more realistic and well-rounded. You could be wanting to make fun of someone, like a politician or celebrity. You could be wanting to tease someone IRL, like writing in your friend as the comic relief. You could be wanting revenge, or to take power back in a bad situation by writing it and changing how it went. There is no right or wrong reason. Keep in mind your purpose.
Now, to our dark horse, RPF. We all know why you’re doing this. You either hate this person or you adore them. You might want to have sexual relations with them, or you like to imagine your favourite movie star working at a coffee shop in a small city and think that would be a fun thing to imagine.
There is another question that is asked when the question about writing IRL people comes up. That question is, do you have to tell someone you’re writing about them? No…and yes.
I know, I know. But again, let’s look at our genres because we can’t paint it all with the same brush.
Let’s start with nonfiction. Often, you will be letting the person know, or they will know that you interviewed them and that information will be shared. In other cases, such as true crime, I would say that you don’t have to get permission from stabby mcstabbington to write about them…but, if it’s a recent case, you might want to check with relatives if you’re writing to a big audience, but that depends on the case too. In yet other cases, you will be working with publicly available information, and you will need to source the information. In the case of a biography, you might want permission from the person or the family to write about the person…and, in talking to them, you might get information you would have not had access to otherwise There’s so much variety in nonfiction that you will have to figure this out for your specific project. So…no, and yes.
In poetry, this depends on you and your relationship with the person. Some would say yes, you should tell the person so they can prepare themselves and your relationship for the potential fallout. Some would also say that you don’t have an obligation to portray people in a flattering light, and even if you tell them they have no power to change your work. Some would say no, you never have to ask because the person lost their right to permission because of their actions. This is a complicated issue, and there’s no right answer. Even if you’re writing about someone in a positive way, it doesn’t hurt to check with them to see if they’re comfortable with strangers knowing things about them, even if those things are good.
It’s easiest for me to speak from my own example. One of my most popular poems is a poem I wrote about my sister. I thought I should check with her before it went live. While she isn’t an introverted nerd like yours truly, we have people who know us who would be watching it. I showed her the poem first and it helped our relationship, and she was moved that I wrote about her. And, when people leave nice comments, I share them with her and she loves it. So…again. No, and yes.
Fiction is another grey area. This depends on your relationship with the person and the nature of your story. For example, if you’ve written your friend into your story as a romantic lead, it might affect their future relationships and you might want to make sure they’re cool with it. However, if they’re a starship captain you might not need to. That depends on the person as well. For example…someone in my life who’s hurt me and I have written each other into stories as villains. When they did this, through a few turns of events, they wound up having me edit it and I was brutal, but they were grateful for it because having the real deal comment on what they would do in this situation made the story better (I wasn’t mad I was the bad guy. I was mad that I wasn’t a good villain. Come on! Don’t make me one of the Gotham mobsters, make me Two-Face). But…they had power over me. I am not asking them if they’re okay with making a special appearance in the story, because in all honesty…I’m much better at writing and the villains I’ve written them to be are actually compelling, so they should be flattered.
I kid, I kid. In all honesty, I don’t want to contact them, and I also don’t feel like they get to have a say in my life and what I do. However, that’s my relationship with that person. In a healthy relationship, I wrote my husband into a story and he was initially annoyed with his mention since he was an employee working for the bad guy. I had a plan for him where he had been secretly helping the good guys the whole time, and I didn’t want to spoil the story…and that just made him feel worse. I should have asked him first, and I probably should have told him the twist too. I use my own example to give some nuance to the situation. The answer is…yes, and no.
Surprisingly, RPF is the least complicated out of all the genres we have discussed. The answer is…why. I don’t know how you would do this, in all honesty, and contacting a stranger to tell them you’re writing about them having relations with one of their friends seems like a massive boundary cross. There’s writing about publicly available information, since they’re available to you as a public figure, and then there’s sliding into the DMs. That seems like a personal thing to do. So…unless they’ve asked, I don’t think you need to do this. Some of the folks you write about probably won’t read it anyway, considering that they’re busy being famous.
Let’s go back to Uncle Bob.
In our hypothetical example, you have written both fiction and poetry where Uncle Bob appears and is referenced. Why are you writing about him? If it was an accident, it was likely because the situation with Uncle Bob shaped the person you are and you are still affected by it. If it was intentional, was it to add a layer to the villain of your story? Was it to get back at him for what he did? Is it because you just wanted the story to be about you, and he is just as much a player in this story as you are? Is this therapeutic, and a way to work through these emotions? Do you know want to get back at him, but you just want him to see what he did and maybe have closure?
And, most importantly, what should you do? You might not need to ask him and get his permission, but should you tell him that you’re writing about him, and let him see the draft? Should you show it to his family, if he has a spouse and kids? There is no right answer. In this hypothetical example, your situation with Uncle Bob is unique. I couldn’t tell you the right answer even if I wanted to. The right answer is within you, young padawan.
More than likely, you won’t be caught writing about someone IRL. The celebrity in your real person fanfiction isn’t going to care that you wrote about them enjoying their favourite flavour of ice cream. Your abuser has no contact with you and wouldn’t recognize your work to see it. Your friend misses their obvious cameo in your story. Good, whatever, fine. Even if you are caught, there is likely nothing they can do about it. They might not like it, but they can’t make you stop. However…there is the possibility that they could get, as the youth say, big mad, and take you to court. Oh, crap. There have been some high-profile defamation suits in the courts at time of writing, so this is at the forefront of many minds. Even broke writers like me wonder this age-old question: What happens if you get sued?
I have not been sued as of time of writing. I hope it never happens. None of my writer friends have either, so let’s use our thought experiment to explore what would happen if you got caught and then taken to court. You told your sibling to kick rocks and you didn’t need to tell Bob you did this. The book is published and people love it. It’s getting great reviews, making good money (I know, the fantasy we all want) and you’re being interviewed and doing public readings. It feels amazing…until Uncle Bob reads it. Uncle Bob gets very mad, scrounging up some money or finding a sleazy lawyer who’ll work for free, he takes you to court. Your family is not happy either, but your main concern is that you have to now figure out how to deal with a trial.
Chances are that if Uncle Bob took you to court, it would be for defamation. There are two different kinds of defamation; slander and libel. You might have seen a meme of J. Jonah Jameson talking about how he’s not slandering Spiderman…because he’s printing articles calling him a menace. It’s in print, so it’s libel. But what does that mean?
Triple J is right. Defamation is false statements of fact that harm another’s reputation. If those statements are made orally, then that is slander. If you write those statements, including a transcript of oral statements, that’s libel. If you’re a writer, and yes, the internet counts as print, that means that you’re probably getting charged with libel. In the United States as well as Canada, libel is a violation of civil law, not criminal law. It seems like certain types of libel in the USA could be tried under the criminal code, but most of the time in the States and here in Canada it is a civil matter. That means that it is not a crime. You’re not going to be arrested and imprisoned until the trial. You’re going to be sued. You get to stay at home. You’re not going to jail if you lose, but you probably have to pay someone a bunch of money. Bummer.
Now, you might think that the law is just the law. You break it, you either go to jail or you pay. There are two kinds of law in the common law system, which many European countries and the USA and Canada use and those are civil law and criminal law. Criminal law is defined as a system of laws enacted to punish or reform those who have committed a criminal act against a state or nation––this also includes crimes committed against individuals. Crimes under the criminal code are things like robbery, murder, and assault. If you rob a store, for example, you’ve committed both a crime against the store owner and the state. Make sense?
Civil law is a blanket term for all non-criminal law, typically in settling monetary or property-related disputes between private citizens—things like child custody, personal injury, and divorce.
There are other differences between the two forms of law. We’re going to focus on the biggest one that is relevant to you, the writer; who initiates the case.
In criminal law, a prosecutor initiates the case, as they are charging the person with a crime against the state. A prosecutor is given authority to act on behalf of the government and they must charge. Even if the crime is against you, an individual, a prosecutor must decide if there is enough evidence to believe that the person who did in fact violated the law. This doesn’t mean guilt or innocent, this means that there are criminals out there who know how to cover their tracks. The burden of proof is on the prosecutor, which is why they need that evidence. It’s their job to prove that a crime occurred and that the defendant is guilty. They must prove, beyond a reasonable doubt, that the crime happened.
In civil law, anyone can initiate a case. If you initiate the lawsuit, you are the plaintiff and the person you’re suing is the defendant. As the plaintiff, the general burden of proof is on you. You have something similar to beyond a reasonable doubt called “preponderance of the evidence”, which is proving that there is a greater than 50% chance that the claim is true. Your lawyer will likely be helping with that if you can afford one. The court, in dealing with slander and libel, also must consider free speech. This is the legal right to say whatever you want to say unless it’s hateful or untrue. Hateful speech is tried as hate speech. Untrue speech is, as we discussed above, defamation.
So you’re being sued with defamation. Uncle Bob and his lawyer are on the warpath. They’re bound and determined to get every last dollar you’ve made on your book and put it in Uncle Bob’s pocket. What does Uncle Bob have to do to get damages? Remember, the burden of proof is on him.
Firstly, Bob has to prove that the material is defamatory. This means he has to prove that the actions were false statements of facts and that his reputation is damaged.
Secondly, he has to prove that it’s about him. That means, as we discussed in our look at privacy, that he has to prove that people reading the story will realize that it’s about Uncle Bob.
Thirdly, it must be proved that the material is being disseminated to people other than the person being defamed. So, if you wrote someone a letter telling them how much they suck they can’t sue you for defamation because that wasn’t for the public, that was for you. If you accidentally showed it to your friend and they put it online, it still might not be defamation. You might be charged with something else, but it has to be available past your family. Since you wrote a book, that’s already been proven. If these three stipulations are not met, then the action cannot go through.
Now, let’s look at our defences. You can attack any of these qualifiers and stop the suit in its tracks. Maybe. I’m not saying anything without certainty.
The first defence and the best defence is the truth. If you can prove that you’re telling the truth, then they can’t sue you for defamation. So, in the example of Uncle Bob, if you say, have an arrest record that says that he was arrested for public intoxication and you mention seeing him stumbling around drunk in the park he was arrested in, that’s not a defamatory statement. In the case of the unspecified bad thing, if you could bring in a witness—say your sibling remembers seeing Uncle Bob hitting you with a belt or throwing a beer bottle at you, and you can prove your sibling’s word as credible and that he was abusive or hurtful to you, you could prove that this statement is true—or at least cast doubts on Uncle Bob in the eyes of the judge and jury. He’s mad that the truth is out, but he can’t sue you.
Let’s say you can prove some statements to be true, but others are harder to. What do we do next? Luckily for us, there are more defences we can use.
Was this statement made in a place where free speech should be respected? This refers to places like parliament or court. No, it wasn’t. Let’s continue. Was this statement a fair comment? That means was the statement made on matters of public interest, provided there was no malicious intent and the statements are honest opinions. It might be argued that knowing that Uncle Bob was a danger to the public at one point is a matter of public interest, and then Uncle Bob would have to prove that the statements were intended to be malicious and that they weren’t opinions. Can you demonstrate that you did not violate Uncle Bob’s privacy with your work? Was this an innocent dissemination? This is a defence for sharing information you did not produce, like news reporting and things of that nature. An example would be a reporter writing a news article saying that someone did something they didn’t, but they were going off of information they were given from someone else. This doesn’t really apply here.
Was there qualified privilege? This permits a person in a position of authority or trust to make statements or relay or report statements that would be considered slander and libel if made by anyone else. That isn’t happening here, either.
The statement must also be damaging. That doesn’t mean that feelings were hurt—that’s not what damages are. Damages are compensation for a loss. They might be punitive, which means it’s being done to punish the defendant, or compensatory, which is to compensate money that the plaintiff lost due to a situation. That means that the plaintiff had to prove that they lost something as a result of the defamation. So that could be hurt feelings if those hurt feelings triggered depression and they missed work…and have a doctor’s note or something else proving this to be the case. They cannot just say “my feelings were hurt, give me money” without those hurt feelings being adequately documented and assessed.
So, in our example, let’s say that Uncle Bob didn’t lose his job. This could be because his boss didn’t read the book and only watches Charlie Chaplin movies on DVD, or perhaps he read the book and didn’t recognize him, or he read it and just shrugged and said whatever, I already knew you did that or I don’t care that that happened. Even if Bob was so angry he didn’t go to work and lost wages, that’s not damages. If he did lose his job, he’d have a good case for libel.
You can see how the Uncle Bob case has no cut and dried answers, and that it’s messy. That’s what defamation suits are like. They’re MESSY. At time of writing, there is an especially messy case in the news right now. It’s not worth it to do this unless you have to, and unless your case is rock solid. There’s no easy answer here, either. But if nothing else I wanted my dear reader to leave knowing that they have options should this ever happen to them.
Alright. Now, we need to discuss how to protect ourselves as writers from potential big-mad baby-brain defamation suits.
Let’s look at Uncle Bob. The suit is going on and on, and your entire family is taking sides. It’s starting to wear on you, and Bob won’t settle out of court. If only you could time travel. Let’s say that you can, but only to change personal events that you were present for by putting your consciousness of now into your body of then. No Looper or Butterfly Effect or Back to the Future.
Let’s rewind the clock. You go back in time and you haven’t published your book yet. Your sibling has just brought up Bob’s inclusion. How can you cover your butt and avoid the wrath of Bob? I’ve presented some of your options in a handy-dandy list.
- As we discussed in the section on privacy, remove all identifying features. If it’s fiction, change their background and traits as much as possible while still keeping the spirit you are going for. For a personal essay or poetry, focus on you. Ignore them. What do you think, what do you feel.
- Don’t accuse or label. Say something like “allegedly” or show the action, don’t tell the reader they did it. For example, don’t say “Uncle Bob wandered around the park drunk and threw up in a bush and got arrested”. Write a scene where you, as a child, are watching your uncle behave oddly and then write the police arriving. Focus on how you feel as a child watching this happen.
- Rely on public information. Ignoring the ethics of privacy, you cannot be accused of defamation if you’re reporting on information already available—an example being court documents or interviews. You are then innocently disseminating if that information turns out to be “wrong”.
- Add disclaimers…like the one at the end of Spiderman
- Ask permission, if it is safe to do so.
- As we discussed in our legal section, tell the truth. Did your boss call you a slur in an email? Save the email. This is something I’ve had to learn the hard way. Save, save, save. Then you can prove that it happened.
- Try not to publish something in a fit of emotion. Some writers will say not to write something to get back at someone, but I’m not going to tell you what to write about or why. Just keep in mind that, if you want to release it, you should do it when you’re in a more calm state and not just acting on emotions, valid though they may be. One, you’ll just be able to edit better. Two, you won’t risk making the mistakes above. Three, you will be able to process the emotions that caused it and decide if you want to make this public…not for them, but you. Someone caused you pain, and it behooved you enough to write a whole piece of art about it. You probably don’t want to be in that mindset forever. Of course not. It hurts. Putting aside the manuscript and not revisiting the pain might be a helpful way to heal. You owe it to yourself to heal, not to them. But also, for our purposes, it will be much, much harder for them to sue you. And you don’t want them to take your money when they’ve already taken from you.
It would be disingenuous of me to talk about this without talking about my personal stake. I was in an abusive relationship and I write about my abuser. I also write about people who have hurt me, whether it is from being toxic or abusive or from being a bigot. I will admit that my usual perception is that if they didn’t want me to write about them, they shouldn’t have acted in a way that they didn’t want in the public eye. But…I also don’t want to get sued. As I mentioned when we started, there are some high-profile cases of defamation in the news at time of writing, one of which is someone suing their ex-partner for accusing them of domestic violence and sexual assault. As a survivor of the same, I have been stewing in worry.
I write about what’s happened to me. I’m a survivor of prejudice and bigotry, as I recently shared, and I’ve been sharing my experiences with domestic violence and sexual assault for years. I have never publicly named the person who abused me, no matter how much I wanted to. Part of me wants to because a dark part of me wants to assert power that he took away, and make everyone see who he really is. I don’t know why I care about his privacy, but the reality is that I do. In protecting his privacy I protect my own. I don’t want my life blasted out there in a way I can’t control, and in revealing someone’s real name I would absolutely be doing that. It also isn’t fair for me to lord my platform over him—while I’m not a big name, I still have more money and a bigger following than my abuser does. I refuse to get in contact with an abusive ex-partner to tell him I’m writing about him. No. That’s a risk to me and my family. So, even though I use some details, I never name him. If a character has an alleged resemblance to him, it’s never a direct copy of the person he is. I’m writing about it to heal, and I’m writing about it to show people that they’re not alone. What he did hurt. It sucked. But I’m not the only person who’s experienced this. I have the right to tell my truth. What I don’t have the right to do, ethically or just practically, is hurt my abuser, even if it will never be equivalent to what he did to me.
In our Uncle Bob example, your hypothetical person was hurt. There’s no denying that. But Bob is a person too, with his own family. There’s no right answer on how to proceed. I’ve given out some information on defamation, just in case someone you write about does get mad, and so you are informed about the law yourself. We’ve talked about the ethics of writing in terms of privacy and power. I don’t claim to have answers. I can’t. I don’t know why you’re writing about IRL people, I can only guess. But it’s worth considering these things when you write because you never know if someone else is considering it too. Keep writing about IRL people. No one should tell you what you can and can’t write (if it isn’t hateful). Take your power back, if you need to. Be cautious, but create.
The final thought I want to leave you with is this. Beyond the ethics and the practicality, you are the one in control of your work. There is always a disclaimer to protect yourself, and there is no better defence than the truth. You never know how you could heal if you reach out to the people you write about, or how it could deepen your relationship, but you are the one in control. No one gets to take that from you. Remember that you can’t control other people, and focus on your work. That is what matters. This has only ever been about you.
Yours in monstrosity,
My sources are here: https://docs.google.com/document/d/1U2DSd4Mu_iZhZjv6UKLnmo9usC6gE1D9uc5knM6bPLs/edit?usp=sharing
Elk A. Scott 
[…] For Whom The Pencil Scribbles: On Writing IRL People […]
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