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Monday, February 1, 2010

Do I Need a Legal Disclaimer?

Q: I have written my memoirs in which I candidly described some of my previous bosses. One is a corporate president, who I claim is “loony” (he believed in “little green men”). I described another boss as “crooked” (the company went bankrupt and the boss defrauded our government out of $268,000). As I prepare the book for my publisher, should I consider some type of legal disclaimer, just in case my “truthful kindness” is not taken so lightly?

Signed: The Thrill of the Quill

Dear Thrill: Remember our childhood jingles, like “Sticks and stones may break my bones, but names will never hurt me?” My, how the world is changing. Now, it seems that if you engage in “name-calling” or comment on an individual’s character, you are subject to a defamation lawsuit.

First, some terms. Defamation is a legal cause of action in which a false statement causes injury or harm to another’s reputation. If the false statement is in writing, it is considered “Libel”. If the false statement is verbal, it is termed “Slander”. To “win” a defamation claim, you must prove basically two things: 1) The statement must expose the person to “hatred, contempt, ridicule, or obloquy, which causes the person to be shunned or avoided (See CA Civil Code sec. 45); and 2) The defamed person must suffer damages/lowering of their reputation (CA Civil Code sec. 48a).

Sticky issues often arise in defamation cases as to whether the “statement” is a fact or an opinion. Typically, an opinion may be protected. A misstatement of a fact is not. Often the courts distinguish fact vs. opinion by analyzing whether the statement can be proven false (i.e. a FACT) or whether the expression is subjective judgment (i.e. an OPINION).

So, if you write that your ex-boss defrauded the government, and it is proven that he did not, you could be sued for libel. If the facts prove that indeed he did defraud the government, then your statement that he is a “crook” would likely be considered an opinion, and may be protected.

You should also realize that defamation claims are limited to living persons only, and the living person must be “identifiable” in the writing. So, if you have out-lived your “loony” and “crooked” bosses, you may be in the clear. (Makes sense if you think about it, as it’s kinda hard to be shunned or ridiculed if you are six-feet under).

You also asked about a legal disclaimer. A usual disclaimer for a work of fiction might read something like, “This is a work of fiction. Any resemblance to actual individuals is merely a coincidence, etc”. Even this type of disclaimer is useless if a real person can actually be identified. In sum, there is no assurance that even a properly drafted disclaimer will provide the necessary protection. You should, however, consult with an attorney who specializes in defamation law, especially if you think your book will be profiled on Oprah and become a best-seller.

Some publishers may address defamation issues via their contract with the author. Carefully read your contract with your publisher. For example, one typical contract provision is that if any claim is made against the book, the publisher may help pay the claim by resorting to the book’s royalties.

I know…it is tough enough putting your memories down on paper, let alone worrying about whether someone will come out of the woodwork and claim a different version of the facts and that you “defamed” them. But that’s what makes life interesting—everyone’s own version of his or her story.

My mama used to say there are three sides to every story—yours, mine, and the truth. Truth is a defense, but the challenge is discovering it!

Debra A. Newby is a resident of Monte Rio and has practiced law for 28 years. She is a member of the California, Texas and Sonoma County Bar Associations. She maintains an active law office in Santa Rosa and emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (, phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101; Santa Rosa, 95401).

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