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.
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