"But I Didn't Use Her Name!"

Writing about real people can be dangerous. Writing about the mob can get you a pair of cement shoes. But writing about your best friend can buy you a lawsuit.

This post isn’t meant to discourage anyone from writing about real people. But the responsible writer will weigh both the benefits and the risks and take steps to minimize the latter.

So what can you do to avoid a lawsuit? Unless you are the Godfather of movie fame, there is no foolproof way to keep people from suing you. There are a number of things you can do to make it less likely, however, and I’ll talk about them November and December. But first you need to know what defamation is.

Generally speaking, defamation is 1) a false statement 2) about an identifiable person 3) that is communicated to others and 4) harms the person’s reputation. If it is written or recorded in a tangible medium, such as a book or a television news tape or a Facebook post, it is libel. If it is merely spoken, such as a comment made at a party, it is slander. Libel usually reaches a larger audience than slander does, and putting the statement in writing or some other tangible medium also increases the chances that it will reappear, so libel usually gets a larger damage award from the jury. Other than that, there are no significant legal differences between the two. Libel and slander are both defamation.

So what are the legal requirements for defamation?

1.         A False Statement

First, the statement must be false. Truth and falsity aren’t always what they seem, however. You can defame someone by using real facts that carry a false implication. “Uncle Charlie sleeps around a lot” may be literally true if he takes frequent overnight business trips, but that isn’t what people will think you mean.

In a defamation lawsuit, the judge or jury decides how an average reader or listener would interpret what was written or said. If they decide that a reasonable person wouldn’t give the words a defamatory meaning, then it is not defamation. Remember, however, that it is the reader/listener’s interpretation, and not the writer/speaker’s intended meaning, that counts.

2.         About an Identifiable Person

A statement is not defamatory unless it refers to a recognizable individual, business, or other entity. So are you safe if you change the names to protect the guilty? No. Changing a person’s name isn’t enough if readers can still recognize the person from the description.

3.         That is Communicated to Others

The statement must be communicated to someone other than the person it refers to. If you write something negative about your mother in your diary and she is the only one who sees it, it isn’t libel.

4.         And Harms the Person’s Reputation

Finally, the statement must harm the person’s reputation. If it refers to something trivial or is clearly an opinion, it’s not defamatory. “She can’t even boil water” is trivial—unless the subject makes her living as a cook. But even if she is a professional chef, the reader or hearer probably understands the words as pure opinion. Either way, the statement does not harm the person’s reputation.

So what if the person’s reputation is so bad that you can’t possibly make it worse? Then you’ve found your perfect victim—theoretically. However, few people have a reputation that bad. One appellate court even found that a convicted criminal known to engage in violent behavior might conceivably be harmed by being called a hitman or a pimp.

Now you know what defamation is, how can you limit your liability?

The answer depends on what you write. Next month, I’ll cover fiction.

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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.