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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9353
Experience:  28 years as a practising solicitor.
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I have recently uncovered some family history and would like

Resolved Question:

I have recently uncovered some family history and would like to write a book on it for my family and I also think some people in the general public would be interested in the content too.

I plan to tell the story from start-to-finish based on my thoughts and experiences as well as facts I have found in public records. The only potential problem I see would relate to defamation (which is the last thing I would want to occur, however in telling the history and my opinions there will inevitably be some people who don’t like what I have to say).

The ‘clinchers’ in the story are based on court cases I was able to review at the national records of Scotland in Edinburgh. Some relate to family members who have passed away and others who are still living.

I was thinking that I could change around the names of the characters and dates of events so that people outside the family wouldn’t know who is who. At the same time, I would also like to keep my name as I’m telling the story from my perspective. However, if I use my name, it then means anybody who would like to do a bit of basic research from ancestry websites could work out the real names of the characters.

I was thinking of saying it’s ‘based on a true story’. That way people wouldn’t know what aspects were true and what aspects were fabricated.

Who would have thought writing a family story could potentially become so complicated.

What do I need to look out for in regards XXXXX XXXXX in scots law?

What tips are there to avoid potential defamation.
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.

Defamation is an untrue statement that is defamatory of a person and as a result they suffer injury to their reputation.

So by definition there has to be a statement, it has to be untrue as a result of which an identified person suffers injury to reputation.

So a work of fiction can't defame a fictional character. Similarly any statements which are true can't be defamatory. You can't defame a dead person unless it also affects a living person in which case they may have a right of action (for example saying that a dead person had a child out of wedlock could be impliedly defamatory of their living child).

Your safe way is to write a work of fiction and change the names. Even if based on a true story, any living persons would only have a right of action if you said untruths and they could be identified, under the veil. It is not sufficient that they alone work out who they are. There has to be a damaging statement that is communicated to others.

As regards XXXXX XXXXX if the comments you make are fair comment based on a reasonable interpretation of the facts you should be OK.

Happy to discuss further.

I hope this helps. Please remember to leave a positive rating so that I am credited for my time.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9353
Experience: 28 years as a practising solicitor.
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