What are the nonfiction writer’s restrictions in using real names of people in a disparaging way? How far can you go legally? Can you change the names and be safe? Public figures seem to be fair game but how about government agencies and their employees?
These are some of the most complex issues that a journalist must face today. It’s also an area where you can’t afford to make mistakes.
Luckily there is a guidebook for us: The Associated Press Stylebook and Briefing on Media Law. And if you want to know what it says, you’ve got to pay for it. You can order it online here at Amazon on on the AP’s web site. Every working writer should have a copy not only for its "Briefing on Media Law," but also for the clarity it brings to matters of style, word usage and punctuation for the contemporary journalist.
As I make clear in The Freelance Success Book: Insider Secrets for Selling Every Word You Write (Write It, Sell It), every time an editor hires a writer, that editor's must choose to trust the writer's honesty and understanding of legal issues such as libel. Unfortunately, too many writers get their first lesson about libel, defamation and product disparagement too late--when trouble is already brewing. Thus, one of my purposes in "The Freelance Success Book" was to provide freelancers with a workable knowledge of this complex issue. Here is a brief guide to libel and slander as I’ve come to understand them through cases I’ve been involved with:
A Brief Guide to Libel, Slander, Defamation and Product Disparagement Libel can be personal libel or trade libel, which is also known as “product disparagement” and can include a product, service or company.
Libelous statements are published statements that are false and damaging. Slander is the same as libel in most states, but in spoken rather than written form. The terms “libel” and “slander” are often subsumed under the term “defamation.”
It is a tort (a wrongful act) to harm another’s reputation by defaming them. How do you know if you might defame someone or something in what you are considering publishing? There are three tests which the defamatory statement must meet in order for a plaintiff to prevail in a suit against you:
1. Untrue. In order to be defamatory, the statement must be untrue. If the statement is true or substantially true, then it is not defamatory, and the case is over. 2. Damaging. In order for the plaintiff to prevail, the statement must have caused real and substantial harm to the person or business. The plaintiff must present evidence of substantial harm done. 3. Knowingly false. The plaintiff must also show that the defendant knew the statement was untrue, but published or broadcast the statement despite that knowledge.
From this brief explanation, you can deduce that the best way to avoid a libel charge, or to defeat it, is to: (1) Write only that which is true and can be shown to be true through your meticulous research and note taking. (2) Keep all research for a period of years, depending on the statute of limitations that applies where you are. In sum, you can say or publish just about whatever you wish in our open society—so long as it is true.
Public Official vs. Public Figure The same liberal rule applies to both categories: To prevail in a libel case against you, in addition to showing that the statement is untrue and caused significant harm, a public official or a public figure must also prove “malice”—that you acted in reckless disregard to the facts known to you and with intent to harm.
Obviously, because of this stipulation, you enjoy considerable protection when it comes to public personages, since proving malice (intent to harm) places a heavy burden on the prosecution.
Who are these public people? The status of “public official” is relatively easy to determine from public records. The trick comes in determining who falls into the category of “public figure.”
The courts have determined that there are two types: A “general purpose public figure” is someone who enjoys social prominence. Entertainers are in this category. But there is also a “limited purpose public figure”—someone who has intentionally placed themselves into prominence, such as a vocal activist on a given issue. The reasoning is that the press has a First Amendment duty to report on such newsworthy people, and therefore published statements warrant such protection. Who is a private person? None of the above. Now you see why lawyers get the big bucks.
Do You Need Model Releases to Protect Yourself from Lawsuits? Bad news and good news:
Whenever you use a photograph of a person without a written release form, you risk being sued for invasion of privacy. A conservative guideline: If the identity of the individual can be discerned in the image, then you should secure a model release from that subject to protect yourself. If the subject is unrecognizable in the image, then you’re probably okay.
A model release is a consent form signed by a photograph’s subject that gives you permission to publish the photograph without invading that person’s privacy or copyrighted image. Professional models often have strict limitations on how their image can be used.
Generally, the photographer’s right of free expression is not questioned if the subject of a photograph is newsworthy. This is what allows paparazzi to harass celebrities anytime they’re in public. However, the privacy rights of a non-newsworthy person can prevail when the image is used for a commercial purpose, especially in trade or advertising. In some states, “trade or advertising” includes only promotional materials, not editorial. In other states, any money-making use, including editorial use, could require permission.
As you can see, there are no hard and fast rules in this area, only ambiguity and contradiction. “Hooray!” shout the lawyers.
It’s best to get a model release from anyone who is recognizable, and especially permission from the parents or guardian of any minor. Caption the photo correctly and make sure it wasn’t taken while you were trespassing on someone’s property.