Today is Christmas Eve, so I’m going to pretend that Scrooge is a real person and you are getting ready to write an article or a biography or some other non-fiction piece denouncing him as a miser. From what we know, Scrooge acted like a skinflint, and a statement can’t be defamatory unless it’s false. But for our purposes, assume it is. Since I’m trying to stick with a Christmas theme, our Scrooge is a secret Santa who gives liberally to the poor.
Obviously, lots of people write memoirs, biographies, and other non-fiction manuscripts that say negative things about living people. These writers take a calculated risk that they can defend against a defamation charge, and they hope the defense is so obvious that the person won’t bother to sue in the first place.
So where do you start when writing about Scrooge? With research, of course. Research, research, research until you are comfortable that your sources are trustworthy and the information is true. Even if it turns out to be false, your good faith, reasonable belief in its truth is a defense.
In most circumstances, calling someone a miser is an opinion, and opinions are not defamatory. But the nature of the statement must be clear from the context, and merely saying that your words are just an opinion is not enough. If you label something as an opinion and go on to imply that it is fact, the jury will look beyond the label.
That brings me back to a point I made in an earlier post. It isn’t what you say that matters. It’s how a judge or jury interprets it. So be especially careful in how you say it.
My final suggestion works for both fiction and non-fiction: get the person’s consent.
What? Why would someone agree to be defamed? For the same reason people agree to go on reality television shows where they come across looking like jerks. Some individuals will do anything for publicity or money. Or they don’t realize how their conduct looks until they read about it on paper, see it on tape, or hear their friends’ comments.
Consent is a defense to defamation. Just make sure you get it in writing and that the consent is broad enough to cover everything you want to say.
Of course, you can’t really defame Scrooge. Not only is he a figment of Dicken’s imagination, he is also long dead. You can’t libel the dead, so if you are looking for an interesting person to write about, try Grover Cleveland or Emily Bronte or Michael Jackson.
God’s blessing as you write on in 2016.
Kathryn Page Camp is a licensed attorney and full-time writer. Writers in Wonderland: Keeping Your Words Legal was a Kirkus’ Indie Books of the Month Selection for April 2014. The second edition of Kathryn’s first book, In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion, was released on September 30, 2015. You can learn more about Kathryn at www.kathrynpagecamp.com.