Legal risks of memoirs: Rebel Wilson claims against Sacha Baron Cohen

This week, a new memoir by actress Rebel Wilson contained a number of explosive claims against comedian Sacha Baron Cohen. The comic, who is Australian, alleged that Baron Cohen asked her to commit a lewd act during the making of a 2016 comedy, which he vehemently denies. It’s not the first time individuals have been taken to task in books, and it certainly won’t be the last. But is it a dangerous tightrope to walk? And what kind of due diligence should individuals exercise when writing their own stories to avoid encountering sticky legal risks?

The Rebel Wilson – Sacha Baron Cohen saga

According to an excerpt from her book “Rebel Rising” published by People, the pair reportedly met in 2013, and he later called her to ask if she would play his girlfriend in “The Brothers Grimsby,” a raunchy R-rated comedy from 2016 that he co-wrote, starred in, and produced.

During filming, the “Pitch Perfect” star recounts, “It felt like every time I’d speak to SBC, he’d mention that he wanted me to go naked in a future scene. I was like, ‘Ha, I don’t do nudity, Sacha.’”

She writes that one day, during a shoot at a soccer stadium in Cape Town, “SBC summons me via a production assistant saying that I’m needed to film an additional scene. ‘Okay, well, we’re gonna film this extra scene,’ SBC says. Then he pulls his pants down … SBC says very matter-of-factly: ‘Okay, now I want you to stick your finger up my ass.’ And I’m like, ‘What?? … No!!’ …”

Wilson then says in her memoir, “I was now scared. I wanted to get out of there, so I finally compromised: I slapped him on the ass and improvised a few lines as the character.”

Read: Britney Spears biography: the problem with celebrity memoirs

Baron Cohen, aged 52, refuted the claim that he ever made such statements, mistreated Wilson, or pressured her into nudity. His representative issued the following statement: “While we appreciate the importance of speaking out, these demonstrably false claims are directly contradicted by extensive detailed evidence, including contemporaneous documents, film footage and eyewitness accounts from those present before, during and after the production of The Brothers Grimsby.”

Representatives for Baron Cohen supplied statements from nine individuals, who remained anonymous, asserting their involvement in the film and supporting the comedian. Five of these individuals claim to have been present during the Cape Town scene, all challenging Wilson’s version of events. The book is due to be published on April 2 by Simon & Schuster.

They said versus they said

It’s always tricky when two parties, both very much alive, make claims against each other. While I’m not here to dispute Wilson’s story at all, we examine whether it’s generally challenging to write your own version of an account, especially when there’s a chance you might end up swimming in legally precarious waters.

Of course, 2023 was the year of memoirs, and there was plenty of gossip that circulated. From Prince Harry’s bestseller “Spare” and its counterpart “Endgame” by Omid Scobie, to Britney Spears’ “The Woman In Me,” many individuals, including singer Justin Timberlake and members of the Royal Family, found themselves in the firing line.

Read: Fact checking: Endgame raises questions over other books

What’s interesting is that none of the named individuals retaliated publicly, partly because any response could be misconstrued in various ways. Not all publicity is good publicity, and sometimes it’s better to be diplomatic and remain silent. However, Scobie did backtrack after it appeared that the Dutch version had published the identity of a member of the family who allegedly made comments in regards to the Duke and Duchess of Sussex’s child’s race – even though UK libel laws forbid this.

However, Scarlett Johansson won a defamation lawsuit against French author Grégoire Delacourt for writing a promiscuous character resembling the movie star. Johansson argued that Delacourt made false allegations about her private life, a stance in which a French judge concurred. However, the court rejected a second accusation that the book fraudulently exploited her name, her image and her celebrity,” thus not barring the publication of translations or the development of a proposed film adaptation. Instead of the $68,000 in damages she sought, Johansson was awarded $3,400.

The legal conundrum

California attorney Helen Sedwick states “Writers face three big legal risks when using real people in their writing: defamation, invasion of privacy, and misappropriation of the right of publicity.”

The author of “Self-Publisher’s Legal Handbook” offers some key tips to avoid a lawsuit. Sedwick explains that if what you write about a person is positive or even neutral, then you won’t face defamation or privacy issues. After all, the problem arises when it could “damage their reputation.”

She said: “I am not talking about portraying your mother-in-law as a bossy queen bee; I am talking about portraying your mother-in-law as a drug dealer.”

What are the three big legal risks?

• Defamation involves allegations that what you’ve published is false and disseminated with malicious intent. If your content is factual (and you can back up the facts), the aggrieved party may be upset but unlikely to succeed in a lawsuit against you. It’s also worth noting that you cannot be sued for expressing an opinion. While libel is the permanent written form. However, framing a contentious statement as an opinion does not guarantee immunity from legal action. This was seen in the recent case between Johnny Depp and Amber Heard, following Heard’s publication of an article in the Washington Post that suggested her former husband, Depp, had been abusive towards her.

Read: Doppelganger by Naomi Klein rethinks self amid mirrored reality – review

• An invasion of privacy lawsuit implies that you’re disclosing information about someone that lacks legitimate “public concern.” Yet, sharing experiences that resonate with many often justifies public concern or interest. Even gossip and sensational stories may be considered of legitimate public interest. The best approach to sidestep potential legal risks is to either obtain permission from those you intend to write about or change enough details to make the subjects unrecognisable. For example, the Duchess of Sussex successfully won an invasion of privacy lawsuit against Associated Newspapers for publishing a personal letter to her estranged father.
• Misappropriation of the right of publicity occurs when someone’s likeness, name, or other identifying characteristics are used for advertising, promotional, or commercial activities without permission. This applies regardless of whether the individual is a private citizen or a public figure, potentially resulting in liability for damages, including punitive ones. Even if the individual has passed away, legal action can still be pursued in certain states and abroad. George Wendt and John Ratzenberger, who play Norm and Cliff from the TV show “Cheers,” filed a lawsuit over their publicity rights when a company made robots resembling them.

What should be avoided?

Everything written must be verifiable, hence the principle of “show, don’t tell.” Writers need substantial evidence for everything they write, particularly if it’s based on old memories. If you base a fictional character on a living person, mask identifying features to ensure they are not recognisable in any way. There’s always the challenge of jigsaw identification, where people piece together bits of information to identify individuals.

The satire site The Onion manages to publish various bizarre stories by mastering the art of parody, i.e., ensuring the stories are so unrealistic that they are obviously not true. (Some of my favourites include “Study Reveals: Babies are Stupid” or “Archaeological Dig Uncovers Ancient Race Of Skeleton People.”)

Sedwick also highlights the importance of avoiding serious legal risks by obtaining written consent and a release whenever possible. For journalists, it’s crucial to consider whether the information revealed truly serves the public interest. In a court of law, this can be a deciding factor, as the dissemination of confidential information, either gratuitously or maliciously, is seriously frowned upon.

Read: Roberto Saviano defamation verdict against Italy PM a blow to free speech

A good example of this not going as planned is the important case brought forward by Pulitzer Prize-winning journalist Carole Cadwalladr when she accused prominent political donor Arron Banks of lying about “his relationship with the Russian government.” Even though the judge dismissed the majority of Banks’ libel appeal against Cadwalladr, she was still ordered to pay Banks £35,000 in damages and approximately £1 million in legal fees. Hence, it can be a very precarious situation.

Sedwick also reminds writers not to use names or images for advertising purposes without express permission, unless the person has been deceased for 100 years while recommending the addition of disclaimers.

In the end, an author’s best bet is to consult with a lawyer before publishing and ensure the work is thoroughly checked.

What the experts say: due diligence and caution are a necessity

Seana Smith, a Scottish-born writer now living in Australia, whose memoir is set to be published in September, shared her perspective with How To Be Books. Smith points out the delicacy of timing when it comes to revealing personal or potentially harmful information. “My point would be that it is often best to wait until a person has died before writing about them,” Smith explained. She continued, “I had a lot of family secrets to spill and I knew I needed to wait until both parents had died. They obliged by dying at 71 and 79. If they had led healthier happier lives then they might have lived longer and I might not have felt I had to get some stories off my chest.”

On the other hand, Sabrina Wiggins, founder of the Self Ink It Awards, which champions indie authors, offered a note of caution to writers considering making claims in their books. “When it comes to making claims in a book, caution is key,” Wiggins advised. She stressed the potential consequences of false accusations, noting, “False accusations not only harm others but can also land authors in legal trouble.”

Read our opinion piece: Are memoirs still important? Top books and why we love them

Wiggins also provided advice for readers navigating the murky waters of memoirs and autobiographies that contain controversial claims. “As readers, it’s wise to approach such claims with skepticism and do some fact-checking before believing everything we read,” she suggested.

“To ensure honesty and accuracy in writing, authors should do their homework. It’s vital to gather evidence, cite reliable sources, and maybe even seek legal advice,” Wiggins elaborated. Similarly, she urged readers to double-check facts and seek multiple sources as a means to help separate fact from fiction.

The advice from Smith and Wiggins showcases the need for a critical approach to both writing and reading such materials. While the truth may be the best defence, as the saying goes, ensuring that what’s presented as truth can stand up to scrutiny is paramount for both authors and their audiences. Taking legal risks can be extremely expensive so it is vital that writers do all that they can when writing their memoirs to guard against libel.