You've seen the headlines at newsstands or in bookstores: Levi Johnston about the Palins'. Jennifer Flowers about President Clinton. Elizabeth Edwards about Senator John Edwards. A former law clerk about the Supreme Court; Tatum O'Neal about Ryan O'Neal.
The headlines and title would have you believe that they're tell-alls about skeletons in the closet, family feuds, secrecy and disappointment. But what about the legal ramifications of these stories?
Tell-all Books: What Meets the Eye
Many people rush to a bookstore or check-out line to read the latest dirt spilled by one celebrity about another. But they may be in for a disappointment. For example, much furor erupted about Elizabeth Edwards' book, which appeared on store shelves shortly after her husband's relationships were revealed. On closer scrutiny, though, the book contains only minimal passing mention of that issue. The moral of the story: buyer beware! Before spending money and time searching for a juicy story, consider whether you want to read about the less sensational parts of celebrity life on your way to find the more sizzling tidbits.
Defamation or Libel?
Just as in elementary school, telling on another person isn't always punishable. The legal theory of defamation is a legal claim where one person can sue another for having made certain types of statements about them. If the statement was in print, the action would be libel, and if it was verbal, the action would be for slander. However, only those statements which are "false statements of fact" are serious enough to be defamation.
If the statement was simply an opinion, then it's not defamation. If subject of the false statement is a private, non-public figure, then all that need be proved is the statement was made with careless disregard for whether or not it was true.
However, if the person who was the subject of the defamatory statement is a public figure such as a celebrity, government official, or other person who is well-known to the public, then it must be proved that the statement was made in reckless disregard of its truth or falsity. This is a higher standard than that for careless disregard, used for private individuals' defamation claims.
Risk of Defamation
Just as a "tell-all" book author may publish at his own peril, so too an ordinary, non-famous citizen can put himself at risk for making false statements of fact. Especially dangerous are such statements which appear in print. If you're considering writing a book or article about someone to "expose" their wrongdoing or their true nature, think before writing. Consult with an attorney if you plan on writing, or being interviewed, about another person, where the story will be critical or controversial.
Likewise, if you've already written or spoken out publicly and made false statements about someone which you fear could land you in a courtroom, speak with an attorney about whether you should take any pro-active steps, such as to issue a corrected statement or an apology.
An attorney can also give you advice and insight about which statements would be considered "facts" versus "opinions." The latter don't fall within the definition of defamation. You'll also be advised whether the article, book or statement was sufficiently distributed to pose a realistic risk of a lawsuit. If you're considering bringing a suit for defamation, an attorney will also give you an assessment of the likelihood of winning, including whether damages, or harm, resulting from the defamation can be proved.
Questions for Your Attorney
- What is a "fact" for purposes of a defamation lawsuit? Can't there be a dispute as to whether something is fact? What kind of proof would someone need to back up facts?
- What level of damages or harm must a person have sustained in order to realistically pursue a defamation lawsuit?
- How difficult is it to prove damages in a defamation action?