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Autobiographers and memoirists sometimes face thorny legal issues when they write about aspects of their own lives that are inseparably intertwined with the private lives of others. Can a woman truthfully describe the intimate details of her sex life if, in doing so, she identifies her partner and aspects of his life adultery, promiscuity, kinkiness?
Can a gay man write about his HIV-positive status if, in doing so, he effectively discloses that his partner is also infected with the virus? The answer is an unsatisfying: While the prerequisites vary somewhat from jurisdiction to jurisdiction, a plaintiff typically must prove: The third element is often crucial to the defense of invasion of privacy lawsuits.
Fortunately, the mainstream media have had considerable success in persuading courts to find that their disclosures of otherwise private facts are protected because they shed light on important aspects of the human condition.
The courts are especially likely to cut authors and publishers some slack in accounts that touch on the private lives of public figures.
But the courts have also often found that even disclosures of private facts about private figures qualify as newsworthy. Sometimes, however, newsworthiness is a close call.
During the course of the program, Booher disclosed that her husband had raped and impregnated Nancy Anonsen, her daughter from a past marriage, when Anonsen was 11 years old.
Booher and her husband then adopted the baby boy born from the incestuous relationship. Prior to Booher's appearance on the show, the family had never reported the crime to the authorities or publicly disclosed the events. If the statement was false, Booher would have run the risk of a libel suit from her husband.
On the other hand, if the statement was true, she ran the risk of a claim for public disclosure of private facts. Analyzing the three elements of the claim under Texas law, the court had no problem concluding that the crimes of incest and rape are newsworthy matters of legitimate public interest, but, in the judge's view, that did not necessarily mean that the albeit indirect disclosure of the victims' identities was a matter of public interest.
But, importantly, the court reasoned: We do not believe that the issue of newsworthiness of the parties' identities. Ultimately, the court concluded that: Although he was not named in the book, the boyfriend sued for invasion of privacy, arguing that many people knew that he had been Kaysen's companion and understood that Kaysen was referring to him.
The judge dismissed the claim, finding that the disclosures were a matter of legitimate public concern. But he also went on to say that: I cannot overemphasize that publishing private facts about others carries significant legal risks and must be done cautiously, if at all.
Not only may there be a question as to whether another person's story is integral to your own -- an essential aspect of the courts' reasoning in Anonsen and Kaysen. If you are publishing a tell-all memoir with a major publishing house or a tell-all article with a major magazine, chances are that somewhere along the line you will get advice from an in-house lawyer about how to reduce the legal risks.
You can change names, change locations, change all sorts of identifying details, while keeping the core truth of your story intact.The Online Writing Lab (OWL) at Purdue University houses writing resources and instructional material, and we provide these as a free service of the Writing Lab at Purdue.
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