Defamation in genealogical publishing is not a tremendous problem for several reasons. First, the law does not recognize defamation of dead people. This fact is combined with the practice of most genealogists not publish information about living people without permission of those people. The third fact is that things thought defamatory in the past are, for cultural reasons, no longer regarded as defamatory. For example, it was once held by by courts in Mississippi, Virginia, Alabama, and Louisiana that to suggest that “a white man is a Negro” would be defamatory. It is unlikely that any court would so rule today.
Another reason that defamation is not a big problem in genealogy is that “public figures” and “public officials” are held to a higher standard to prove defamation. A “public figure” or “public official” must prove that the defamatory statement was made with “actual malice.” “Actual malice” means to know that the statement is false or to publish the statement with a reckless disregard for the truth or falsity of the matter. As a result, a”public figure” or “public official” will rarely bring a defamation suit.
The situations in which defamation may arise in genealogy are rather limited. One example is where one writes about a family in a way that reasonably could be understood to refer to still living members of the family. Suppose one writes, “All those Sanfords in Texas are crooks.” Present members of the Sanford family living in Texas probably have a good case! Here are some ways to avoid defamation:
1. Write only about dead people, unless you have explicit permission to write about living people.
2. Stick to documentable facts; don’t speculate about things that may harm someone’s reputation.
3. Document; document; document!
4. Avoid repeating gossip that can’t be confirmed.
5. If you’re not comfortable with something you’ve written, get a secound, hopefully neutral opinion, before it is published.
Notice: The information in this writing is intended for educational use only and is not intended nor should it be construed as legal advice. If you have a legal problem, consult a lawyer admitted to practice in your state of residence. I am an active member of the bar of the State of California and I am admitted to practice before the United States Supreme Court and various other federal courts. I am not licensed to practice in any other state. I am not presently soliciting or accepting new clients in the matters discussed above.
October 19, 2007 Friday at 9:36 pm