Arts Law regularly receives queries relating to people wanting either to:
- write about a member of their family or community; or
- depict a person they know or don’t know in a film.
The issue that arises is, how does the law regulate one person publishing a story about another person?
In Australia there is no general right prohibiting one person from telling a story about another person. However, depending on the story, and the reputation of the subject, issues may arise if:
- the work is defamatory;
- the information in the story was secret and obtained on a confidential basis; or
- the use the work is put to is somehow misleading, for instance by suggesting an affiliation with or endorsement by the subject which is untrue.
So, if you want to write or make a film about a real person, there are advantages to first obtaining approval in writing to depict their life story. A ‘release’ (as they are often known) will typically include promises (warranties) that the person won’t later sue you for defamation or breach of confidence. The deal may also include promises that that they will deal you on an exclusive basis and permission for you to adapt your work for other media. Further, a written approval can secure your access to additional personal information, historical records and interviews. Last but not least, many funding bodies these days insist that you have obtained interviewee’s releases as a pre-condition to granting you any funding.
Defamation is a communication from one person to another about an identifiable third person and which lowers the reputation of the third person. If you defame someone they may be able to sue you. However, often it is possible to justify what you have published – for instance by showing your publication is true or that it is only your opinion and that you made this clear. For more information, see Arts Law’s information sheet on Defamation, available for free online.
Some tips to remember to avoid being sued for defamation if you want to publish biographical material:
- Only a living person can be defamed, however be careful not to defame other people associated with a dead person you write about, like their family or business partners;
- Defamation is only applicable if you damage someone’s reputation;
- Changing a true story into a fictionalised one by changing the characters names won’t necessarily protect you if the person is still identifiable.
Breach of confidence
Retelling a person’s secrets, such as when a family member, patient or friend confides in you, may be an unlawful breach of confidence. You will come under an obligation to keep information secret when:
- the information is of a confidential nature; and
- you were told or put on notice the information was confidential or you had reason to believe it was confidential based on the way you obtained it.
If you then make an unauthorised use of the confidential information you could be sued. The ‘owner’ of the confidence could ask a court for orders that you destroy the information and not communicate it to anyone else and that you pay them damages.
The following tips can help to avoid a breach of confidence action:
- Information already in the public domain is not protected by confidentiality;
- Consider whether one person’s story contains the confidential information of another person?
- Get written authority from the person who’s information is confidential, for you to use and publish that information;
- If you get written authority from one source, ask for a promise that their information is not someone else’s secret.
Checklist for written approvals
When you seek written approval from the subject of your story, consider the following issues:
- Is the approval exclusive or non-exclusive?
- Do you only have the exclusivity for a limited or unlimited time?
- Does the authority grant you access to records, archives, personal memoirs and other interview subjects that are otherwise unavailable to you?
- Does the authority warrant that the material provided to you is not defamatory or confidential and that it is the truth?
- Are you allowed to fictionalise the story to make the story more dramatic?
- Does the authority warrant that the person won’t later sue you for defamation or breach of confidence?
- Is the scope of the authority wide enough for what you have in mind? For instance, does it cover the situation where someone else wants to make a film based on what you have written?
- Does the person have a right to any income from the project, and how is payment structured?
Remember, even if you don’t get an authority, you may still be able to go ahead with your story but you may need to take more care not to defame the subject of your story.
Naomi Messenger was a seconded lawyer from KPMG Legal.