Everyone has secrets. We may post life’s ups and downs all over social media, but tucked in the dark corners of our minds are some memories we keep to themselves.
But what if you want to write a memoir or novel that releases these hidden demons? Undoubtedly, your work will involve other people and their secrets. How do you balance honest exploration with protecting confidences? When is revealing too much inviting a legal action for invasion of privacy?
Almost all writers use real people in their writings, so we to learn how to recognize and minimize legal risks. In my last two posts, I discussed defamation and misappropriation of the right of publicity. Now, let’s look at Invasion of Privacy.
What is the Right to Privacy?
Many call it the ‘right to be left alone.’ If you invade someone’s privacy, you could have legal liability even if everything you write is true.
The law recognizes four types of invasion of privacy:
- Physical intrusion upon a person’s seclusion, such as breaking into a home, recording someone with a hidden camera or microphone, or obtaining private information through hacking or other wrongful means;
- Misappropriation of the Right of Publicity, which I discussed in an earlier post;
- Portraying someone in a False Light, such as using a photo of a young man in an article about street gangs that wrongfully implies the young man is a gang member; and
- Disclosure of private facts. This is my focus today.
The long definition is:
- the unauthorized disclosure,
- of private facts
- about an identifiable, living person,
- that are highly offensive to a reasonable person of ordinary sensibilities, and
- are not of public interest.
Quite a mouthful, isn’t it?
A plaintiff (the person filing the lawsuit) needs to prove ALL FIVE elements in order to win a case. Four out of five won’t do. Let’s look at each element separately.
Obviously, the safest way to write about real people is to get their permission in writing. If your work will be traditionally published, ask your publisher if they have a preferred form. If not, find one of the internet. The broader the release, the better.
Resist giving the person the right to review and approve your work. Too often, when people see their personal information in print, they change their minds, leaving with the writer with an unusable manuscript. Not good.
Of course, consent is not always obtainable or even advisable. Does this mean you can’t write about people? No. You can certainly write about people, but be careful about the other four criteria.
For information to be private, it must not be widely known. Any incident that occurs in public is not private, especially now that everyone carries a Smartphone. Information in court documents and news reports is also not private, although there have been cases where decades-old criminal history has been considered private.
What about family secrets? Every family has certain topics that are simply not discussed, but that does not necessarily mean the information is private. No one may speak about your cousin’s drinking problem or why Uncle Joe married Aunt Jane, but if your cousin has a long criminal record of DUIs and your grandmother has been bad-mouthing poor Jane to all her friends, then the information may no longer be private.
Identifiable, living person
The private disclosure must be about someone reasonably recognizable. It is not enough that the person recognizes himself; other people must be able to identify the person. For this reason, many lawyers recommend changing names and identifying characteristics about anyone portrayed in a negative light, even in memoirs. This is permissible as long as you say upfront that names, dates and identifying information has been changed to protect privacy.
Like defamation, the right to privacy dies with the person. However, you should consider whether surviving family and friends might still be harmed by the release of the information.
Don’t forget to consider the privacy of smaller players in your work. For instance, if you are writing about a renown playboy, consider whether you are intruding upon the privacy of his conquests.
The disclosure must be more than embarrassing; it must harm a person’s personal and professional reputation. Typically, these cases involve incest, rape, abuse, or a serious disease or impairment.
Sex videos have triggered a number of privacy suits. Recently, rapper 50-Cent lost a $5 million suit for releasing a sex video of another rapper’s girlfriend.
Disclosing favorable information does not give someone a legal claim, although it may make family get-togethers a little awkward.
This is a huge loophole that favors writers. Even if the information is highly offensive, courts often decide there is no legal liability because the information is of public interest.
Public interest does not mean high-brow or intellectual. Gossip, smut, and just about anything about celebrities is of public interest. The fact that a traditional publisher decides to print the material is enough to demonstrate public interest. If a blog post goes viral, that is evidence of public interest.
Frequently, courts find stories of rape, abuse, and incest to be of public interest if they are disclosed by the victims. As you can imagine, judges and juries are not sympathetic when a perpetrator tries to claim invasion of privacy.
Consider whether you are subject to other restrictions before you disclose confidences. As an attorney, I cannot use any confidential information about a client, even if I change the name and mask the identity. The same would be true for therapists, doctors, accountants, and other professionals.
If you are a trustee, partner, or have a fiduciary relationship with a third party or a minor, you have a duty not to bring harm onto the other party by disclosing personal information.
Have you signed a confidentiality agreement? Many public figures require their assistants, gardeners, nannies, drivers, maids, chefs, and other staff to sign tough confidentiality agreements. If you breach one of these agreements, expect a heavy-handed letter from some high-priced attorney.
If you were a party to a lawsuit settled out of court, take a look at your settlement agreement. Most likely, it contains nondisclosure and non-disparagement clauses. You could unwind the hard-fought settlement by blabbing.
Will you be disclosing trade secrets or other proprietary information? At your job, you may learn valuable trade secrets such as formulas, marketing plans, and manufacturing details. If you disclose that information, even if it is true, you could find yourself out of work and facing a lawsuit, if not criminal charges.
What’s a writer to do?
- Consent is best. Whenever you can, get consent before you record, interview or write about someone. If you are using letters, diaries, photos or other materials created by others, get permission to use the materials for both copyright and privacy reasons.
- Alter names, places, and identifying characteristics. Changing information to protect privacy is an acceptable practice for memoir writers and an absolute given for fiction writers.
- Consider how necessary the private information is to your story. Judges and juries can be quite moralistic and will punish someone who discloses confidential information gratuitously or maliciously.
- Watch your motives. Do you secretly want your ex-spouse, boss, parent or mother-in-law to recognize themselves in your work? Will changing one letter in a name protect you? Probably not. As I said in my post about defamation, if you are writing a getting-even book, write the manuscript with passion, then put it aside for months, even years. With time and perspective, you will be better able to mask your characters and make the story more universal.
- Verify your information. Memories are tricky. Research public records and talk to other involved to develop and support your statements. Keep records of your research.
- Add a disclaimer to your work. Here are some nice examples from famous memoirs.
- Apply the “Sister Test.” If someone were to disclose the same information about your sister, how would you react?
- When in doubt, consult a publishing or First Amendment attorney.