I got to cruising the various forums this morning and run across, once again, another familiar question. “Can I use real people in my writing?” Well, the answer on that depends and here’s why.

If you’re using a public figure and/or celebrity, their rights to privacy are far different than ours legally. That DOES NOT, however, mean you can defame them. One could write Stephen King into your book and provided you didn’t slander him, things would be okay. However, if you added him and then tried to say he slept with a goat..then you can-and will-get sued. See what I mean?

In my third Talia novel I have Bill Clinton, Sandy Berger, Madeline Albright and the WH Chief of Staff in a scene. However, what I do is write them into the roles the played in real life and left and personal feelings out of the writing (which is what a professional does to be honest). So, it has them being who they were in real life, which frees me from litigation issues. See what I mean?

Here is the legal definition of slander and defamation of character:

(not both are from legal-dictionary.thedictionary.com

Slander:

 oral defamation, in which someone tells one or more persons an untruth about another which untruth will harm the reputation of the person defamed. Slander is a civil wrong (tort) and can be the basis for a lawsuit. Damages (payoff for worth) for slander may be limited to actual (special) damages unless there is malicious intent, since such damages are usually difficult to specify and harder to prove. Some statements such as an untrue accusation of having committed a crime, having a loathsome disease, or being unable to perform one’s occupation are treated as slander per se since the harm and malice are obvious, and therefore usually result in general and even punitive damage recovery by the person harmed. Words spoken over the air on television or radio are treated as libel (written defamation) and not slander on the theory that broadcasting reaches a large audience as much if not more than printed publications.

Slander is the spoken word, done with malice (which is the key to prosecuting these cases), that tells lies about another person. So, once again, if I went out and said someone was  a rapist when they weren’t, then that person could sue me.

Defamation of Character:

Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

Defamation may be a criminal or civil charge. It encompasses both written statements, known as libel, and spoken statements, called slander.

The probability that a plaintiff will recover damages in a defamation suit depends largely on whether the plaintiff is a public or private figure in the eyes of the law. The public figure law of defamation was first delineated in new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). In Sullivan, the plaintiff, a police official, claimed that false allegations about him appeared in the New York Times, and sued the newspaper for libel. The Supreme Court balanced the plaintiff’s interest in preserving his reputation against the public’s interest in freedom of expression in the area of political debate. It held that a public official alleging libel must prove actual malice in order to recover damages. The Court declared that the First Amendment protects open and robust debate on public issues even when such debate includes “vehement, caustic, unpleasantly sharp attacks on government and public officials.” A public official or other plaintiff who has voluntarily assumed a position in the public eye must prove that defamatory statements were made with knowledge that they were false or with reckless disregard of whether they were false.

Where the plaintiff in a defamation action is a private citizen who is not in the public eye, the law extends a lesser degree of constitutional protection to defamatory statements. Public figures voluntarily place themselves in a position that invites close scrutiny, whereas private citizens who have not entered public life do not relinquish their interest in protecting their reputation. In addition, public figures have greater access to the means to publicly counteract false statements about them. For these reasons, a private citizen’s reputation and privacy interests tend to outweigh free speech considerations and deserve greater protection from the courts. (See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 [1974]).

Distinguishing between public and private figures for the purposes of defamation law is sometimes difficult. For an individual to be considered a public figure in all situations, the person’s name must be so familiar as to be a household word—for example, Michael Jordan. Because most people do not fit into that category of notoriety, the Court recognized the limited-purpose public figure, who is voluntarily injected into a public controversy and becomes a public figure for a limited range of issues. Limited-purpose public figures, like public figures, have at least temporary access to the means to counteract false statements about them. They also voluntarily place themselves in the public eye and consequently relinquish some of their privacy rights. For these reasons, false statements about limited-purpose public figures that relate to the public controversies in which those figures are involved are not considered defamatory unless they meet the actual-malice test set forth inSullivan.

Determining who is a limited-purpose public figure can also be problematic. In Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976), the Court held that the plaintiff, a prominent socialite involved in a scandalous Divorce, was not a public figure because her divorce was not a public controversy and because she had not voluntarily involved herself in a public controversy. The Court recognized that the divorce was newsworthy, but drew a distinction between matters of public interest and matters of public controversy. In Hutchinson v. Proxmire, 443 U.S. 111, 99 S. Ct. 2675, 61 L. Ed. 2d 411 (1979), the Court determined that a scientist whose federally supported research was ridiculed as wasteful by Senator William Proxmire was not a limited-purpose public figure because he had not sought public scrutiny in order to influence others on a matter of public controversy, and was not otherwise well-known.

Further readings

Collins, Matthew. 2001. The Law of Defamation and the Internet. New York: Oxford Univ. Press.

Friedman, Jessica R. 1995. “Defamation.” Fordham Law Review 64 (December).

Jones, William K. 2003. Insult to Injury: Libel, Slander, and Invasions of Privacy. Boulder, Colo.: Univ. Press of Colorado.

Smolla, Rodney A. 1999. Law of Defamation. 2d ed. St. Paul, Minn.: West Group.

While slander and defamation of character are the same (one is spoken and the other is written) the concept remains the same. If the statements are:

1. Untrue

2. Done with Malice

then you don’t have a leg to stand on.

However, with that said, the biggest part of the tort liability suit (which defamation/slander is a civil crime) is proving it was done with malice. If that can’t be proven, then the suit stands a chance of being won by you…but why take the chance?

Best bet? If you’re going to use them, then damn well keep them in the position they were in and don’t deviate from what you’ve seen from them publicly of you’ll end up in deep crap.

My advice for any writer is to read up on tort law anyway. I’m lucky, I took business law, which exposed me to most of the torts out there, and know how they work. However, if you don’t, then don’t risk it.