Some common sense tips for protecting yourself from litigation

In an online self-publishing support group, a member posted that they had finished their manuscript and needed an attorney to review it to be sure the author wouldn’t get sued.

The responses to the post ranged from questioning the need for such a review to the cost and other issues. Sprinkled in the discussion were several references to the fact that we enjoy freedom of speech in the United States.

It’s true that we can say or write whatever we want. It’s also true that if we choose to tell lies, we will likely suffer consequences. If we invade someone’s privacy and therefore cause them harm, even if what we shared was true, we will likely suffer consequences. If we sign a nondisclosure agreement (NDA) and then reveal what we agreed to keep confidential, we will likely suffer consequences.

Those consequences will usually come from civil action, not the government. And the costs can be significant.

The text of the First Amendment is beautifully clear and simple:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Every word of this amendment is critical. But while it’s true that “Congress shall make no law … abridging the freedom of speech,” there are both legal and practical limits to speech even in a free society.

Photo by Jerry D Clement

Legally, the types of speech not protected by the First Amendment include speech that incites imminent lawless action, speech that is obscene or child pornography, threats, defamation, speech that constitutes fraud, speech that is integral to criminal conduct, and speech that disrupts the functioning of a school.

Most authors don’t have to worry about those issues, although some business and self-help authors have had to defend themselves against charges of fraud. If you’re giving advice or making promises, you may want to include appropriate disclaimers or perhaps consult an attorney to make sure you’re protected. (See “Does Your Book Need a Disclaimer?”)

Where I more often see authors concerned about litigation is when they’re writing memoirs, sharing their experiences in other formats, or using real situations as the basis for either a novel or as a nonfiction illustration. If you want to divulge personal and potentially embarrassing things about yourself, that’s your choice. But think twice before you do it about someone else.

There are a lot of legal nuances to consider when you’re writing or speaking about other people. If the information is accurate and verifiable, you have some defense, but you still could be sued for emotional distress. If the information is false or if you can’t prove it, you risk a defamation claim. Then there’s the question of whether you’re speaking about a public figure or a private person; private individuals are more likely to win defamation or emotional distress claims.

I’m not a lawyer, but here’s how I advise my clients:

Most important: Be truthful (or else be clear that you’ve made up all or some of the story).

If you signed an NDA or any other confidentiality agreement, abide by its terms, even if you don’t think they’re fair or the situation occurred many years ago.

If sharing the information would embarrass or in some other way damage the person, consider how important it is to your message to include it. If you feel it’s necessary, either get permission from the subjects or write in a way that disguises the identities of the people involved.

Resist the urge to let the desire for revenge overwhelm your common sense. You may have been injured, but lashing out at the responsible party isn’t the best way to handle your pain. It may be helpful to write about the situation as a form of therapy, but then delete that section from your final manuscript.

Understand what can happen if you open yourself up to charges of defamation, fraud, or other damages. You could be forced to withdraw your book from the market or edit the offending material out of it—a process that can be costly. You might have to pay damages and the other party’s legal fees. Your reputation could be seriously harmed. And whether you win or lose, lawsuits are expensive and time-consuming.

Words are powerful. Choose yours carefully. And be prepared to accept the consequences of what you write or say.