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Including private facts in published genealogies

As a follow-up to my February 9, 2012, post about the (non-)effects of HIPAA1 on genealogical archives, reader Sharon G. asks this related question:

What are the legalities regarding medical reporting (by nonmedical professionals) in genealogical family histories regarding living persons?

Great question. Short answer: I wouldn’t do it. It may be legal, meaning the person publishing the family history likely won’t be sued if what’s reported stays within certain limits but, without the express consent of the persons involved, it’s not right.

Is it legal (that is, are you gonna get sued)?

Remember always my usual disclaimer2: this ain’t legal advice ’cause I’m not your lawyer, I’m not admitted in your state, free legal advice on the internet is worth what you pay for it, yadda yadda yadda.

Publishing private facts

Before you can decide whether to risk publishing confidential information, you have to start by answering one simple question: is the information true?

If it isn’t true, then (a) you don’t want to publish it anyway; and (b) you could get yourself in a whole heap of trouble because publishing false information can cross the line into what’s called defamation.3 There’s a great plain-English guide to defamation law online at the Electronic Frontier Foundation, and I’d recommend it to anybody who writes and particularly to anybody who writes online.

But what if it is true? Surely nobody can be sued for publishing information that’s true, can they?

Yes, actually, they can. You can still end up as the defendant in a lawsuit for publishing completely accurate information — and what you’d be sued for is invasion of privacy.

The law differs from state to state but many states basically follow the concept of this tort (a civil wrong4) set out in the Restatement of Torts 2d §652D:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.5

So the first element of a claim for invasion of privacy is that you’re giving “publicity” to the fact. The Restatement of Torts explains that that isn’t telling one other person or even a small group of people but rather saying it in a way or at a time and place where the fact may become public knowledge. And, according to comment b to §652D,

any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication.6

Publishing a family history available to the public would likely qualify even if you never expected a lot of people to read it. And putting it in a post on your blog would definitely qualify.

If there’s publicity, then the next element is that the information itself really is private. It’s not enough that it’s the kind of information someone considers private; it has to really be private. If there’s a public record out there — a public court document, for example, that reports that a hospital had to pay Person A because Person A contracted a terrible disease from a blood transfusion at the hospital — then the fact that Person A had that terrible disease isn’t private.7

If your source isn’t a public or other published report, then the third element is whether a reasonable person would find your disclosure of the information highly offensive. There’s no hard-and-fast rule for what is or isn’t highly offensive, but facts that court cases have held are highly offensive include:

     • that a person suffered an eating disorder causing weight loss even while eating well8
     • that a person had cosmetic surgery9
     • the fact that someone had been a patient at a psychiatric hospital10
     • details of sexual abuse suffered by victims of a robber11

Rule of thumb: the more embarrassing the information would be to an ordinary person, the more likely disclosing it will be considered highly offensive. Ditto for how personal the information is.

If the information is private and highly offensive, the final element is whether it’s a matter of legitimate public concern. That just means you won’t get sued, for example, for announcing at a town meeting that the elementary school cook was diagnosed with a highly contagious and potentially fatal disease this afternoon… and sneezed into the spaghetti sauce at lunchtime.

One last point: all of this only applies to living people. As a general rule, the law won’t let anybody bring an action for the invasion of privacy of a dead person.12

Is it right?

Whenever we as genealogists deal with living people, we have two questions to answer. Yes, there’s always the issue of whether what we propose to do is legal. But there’s also the question of whether what we propose to do is ethical — that is, is it right?

Me, as a Certified Genealogist (for all of 12 whole days now), I’m bound by the Code of Ethics of the Board for Certification of Genealogists®, so I’ve promised that “I will keep confidential any personal or genealogical information given to me, unless I receive written consent to the contrary.”13 I realize that this promise is in the context of my duties to a client, but I consider it a duty to any living person, client or not, not to publish confidential information without that person’s consent.

Some people won’t mind having their medical history included. They may want to ensure others in the future are aware of some inheritable genetic disorder. Or they just may want anyone who reads the family history to know how hard it was to deal with that cancer diagnosis. Others would be appalled at the thought that anyone might find out they had Parkinson’s or Alzheimer’s or even diabetes. We’ll never know how living persons feel about these issues unless we ask.

Sure, there will be times when we ask and the person clams up. But there will be other times when the very act of asking opens up a conversation that could offer an amazing opportunity to learn more.

And besides… what’s the worst that can happen if we do ask? The person will say no.

So… let’s see here… the average lifespan of a man in the United States these days is around 76 years, the average lifespan of a woman around 81 years.14 So the amount of time a family would have to wait before a published family history would include a specific person’s medical history is likely going to be less than 100 years. And the amount of time the family would have afterwards to include that medical history? Eternity.

You know what? Under these circumstances, the family history can wait.


SOURCES

  1. Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §1320d et seq.
  2. Rules of My Road,” The Legal Genealogist (http://www.legalgenealogist.com/blog) posted 18 Feb 2012.
  3. “An intentional false communication, either published or publicly spoken, that injures another’s reputation or good name.” Black’s Law Dictionary, 6th ed. (St. Paul, Minn. : West, 1990), 417, “defamation.”
  4. “A private or civil wrong or injury, … for which the court will provide a remedy in the form of an action for damages.” Ibid., 1489, “tort.”
  5. American Law Institute, Restatement of the Law, Second, Torts, vol. 3 (Philadelphia : American Law Institute, 1977), §652; online reprint, Berkman Center for Internet & Society, Harvard Law School, “Privacy in Cyberspace : Module II” (http://cyber.law.harvard.edu/privacy/Privacy_R2d_Torts_Sections.htm : accessed 6 Mar 2012).
  6. Ibid.
  7. See, e.g., G.D. v. Kenny, 205 N.J. 275, 311 (2011) (no invasion of privacy for revealing criminal record, even though record was expunged).
  8. Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942).
  9. Vassiliades v. Garfinckel’s, Brooks Bros., 492 A.2d 580, 588-589 (D.C. Ct. App. 1985).
  10. Wilson v. Grant, 297 N.J. Super. 128 (App. Div. 1996), certif. den. 149 N.J. 34 (1997).
  11. Romaine v. Kallinger, 109 N.J. 282, 298 (1988).
  12. See e.g. Nicholas v. Nicholas, 277 Kan. 171, 191-192 (Kan. 2004).
  13. Board for Certification of Genealogists®, Code of Ethics and Conduct (http://www.bcgcertification.org/aboutbcg/code.html : accessed 6 Mar 2012).
  14. Wikipedia (http://www.wikipedia.com), “List of countries by life expectancy,” rev. 6 Mar 2012.
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