Featuring Real People in Your Writing? Protect Yourself From Lawsuits!

Hi Ang:

As usual, I enjoyed your column—this one entitled: “Featuring Real People in Your Writing?“. However, I have a cautionary tale for your readers. Even if you CHANGE the names of the people you’re writing about there is still the chance that someone will threaten a lawsuit.

When BookLocker published my book, Some Sunny Day, about growing up in a small northern mining town, I made sure that I used made-up names for the people mentioned in the book. In my prologue, I stated that the names had been changed to protect the truly innocent but that anyone who lived in the town during that era would recognize the characters mentioned. The “truly innocent” I was talking about was ME – because as a former journalist I was aware of the fact that anybody can sue anybody for anything and, even if you successfully defend yourself, you can still go broke paying legal fees.

In fact, there is a well-known entrepreneur in Canada who recently did time in a U.S. prison for fraud (notice I’m not mentioning his name at all, made up or otherwise) for whom the term “libel chill” was invented. A multi-millionaire, he would sue journalists at the drop of a hat if he thought they had slighted him in any way in their stories. With such deep pockets, he could keep a lawsuit going until the journalist and the publication in which the “offending” story appeared went broke. Thus the term “libel chill” – journalists and publishers were frozen with fear at the thought of being sued by the man and so they pretty much left him alone, letting him get away with things that eventually led to his downfall.

Anyway, back to Some Sunny Day. It had been some years since I had lived in the small mining town I wrote about and I wasn’t aware that shortly after my family moved away, another family with a name similar to the one I had randomly chosen for one of the characters moved into town. After my book was published, I received a nasty letter from one member of the family, threatening to sue me for allegedly maligning one of her kin. The fact that the reference was to another person altogether and really wasn’t derogatory wouldn’t have mattered if a lawsuit actually was launched. It never went that far. I wrote the person and explained the situation. I further promised to change the name in any future editions of the book. Nothing more ever came of it, but I spent a few sleepless nights wondering whether I’d be hearing from a lawyer. Needless to say, when the second edition came out (it was a very successful book and the first printing sold out quickly) not only did I not use the same name for that particular character – I actually deleted the whole incident.

The threat of a lawsuit is an ever present danger in the writing game – whether you’re writing a letter to a friend or the Great American Novel. All you can do is take every possible precaution against offending anyone (unless the guilty party needs exposing and you’re prepared to go to court in the knowledge that the truth is the best defense against libel). And if you do receive a threat of a lawsuit, the best way to handle the situation is to send have your attorney send a polite response to the complainant rather than taking a belligerent stance or simply ignoring the complaint. More often than not, a reasoned approach, rather than an attitude of “Damn the torpedoes; full speed ahead!”, will rectify the situation.

Tom Douglas