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.
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.
- Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §1320d et seq. ↩
- “Rules of My Road,” The Legal Genealogist (https://www.legalgenealogist.com/blog) posted 18 Feb 2012. ↩
- “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.” ↩
- “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.” ↩
- 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). ↩
- Ibid. ↩
- 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). ↩
- Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942). ↩
- Vassiliades v. Garfinckel’s, Brooks Bros., 492 A.2d 580, 588-589 (D.C. Ct. App. 1985). ↩
- Wilson v. Grant, 297 N.J. Super. 128 (App. Div. 1996), certif. den. 149 N.J. 34 (1997). ↩
- Romaine v. Kallinger, 109 N.J. 282, 298 (1988). ↩
- See e.g. Nicholas v. Nicholas, 277 Kan. 171, 191-192 (Kan. 2004). ↩
- Board for Certification of Genealogists®, Code of Ethics and Conduct (http://www.bcgcertification.org/aboutbcg/code.html : accessed 6 Mar 2012). ↩
- Wikipedia (http://www.wikipedia.com), “List of countries by life expectancy,” rev. 6 Mar 2012. ↩
Congratulations on your certification! I just wanted you to know that I started reading your blog just a couple of weeks ago and I love it. I find the writing clear, concise, and well-documented on very useful topics. Plus it is just an all-around enjoyable and fun read. Great blog and great genealogy. Thanks.
Thank you so much for the very kind words!
um-hm, just don’t do it, is my ethical decision-making. And, Congratulations on your well-earned “professional certification” – 12 days? Amazingly wonderful.
Thanks for the congrats, Celia! I’m still pretty much feet-off-the-ground about it.
I wish that everyone doing family research would read this – it could prevent a lot of embarrassment, even it there is no legal issue involved. I myself made an error on my blog recently with the date of death of my husband’s great grandfather that if correct, would mean that the youngest daughter of the family could NOT have been his child. I realized my error last night and posted a correction, in bold red, to the post. just this morning, a wonderful Dutch researcher found the correct date of death and youngest daughter was indeed legitimate. I am a little red in the face that I wasn’t more careful and these people are long dead. A valuable lesson learned – triple check, quadruple check, and then, check again!
As far as medical information and other information that is quite private to living people, it goes into my database, but I woud NEVER publish it online. Just “not right,” IMO. An example is that I have knowledge that a living child of living parents was adopted – the child does not know that she was adopted. I certainly wouldn’t want her to find out from an online family tree.
That goes way beyond just medical info, Pam. As either the adoptive parent or the adopted child, I’d be appalled.
Pam, you’re far from the only person who’s made a blunder — I did, online, about living people. It had a good ending, but it could have been sooooooooo bad. (I’d write about it, except the living people involved would likely tear my heart out and eat it before my eyes.)
This blog hit me home. Literally! I found a ‘cousin’ to my mother online, and realized through several conversations, with my mother and ‘her’ that she was the ‘given up after the mothers birth’ baby.
She and I emailed back and forth, and I refused to give her ANY living information. I told her that is NOT okay in my book (and lets be real: I don’t KNOW this woman, this isn’t a cousin I grew up with and sent birth announcements/graduation announcements to) and I would only share that information in regards to my grandmother and her siblings (one of which was this womans mother) since all are deceased, and further back in the lineage and I would share pictures.
A month later, she send me a packet of ‘trees’ and tells me to please correct all informaton and to send back to her for ‘her book she is writing’ – excuse me? In there, while many items are incorrect, are MY childrens names. I did NOT give her those, nor know how she got them. She does not know the ‘family’ and in talking with several ‘east coast cousins’ no one has had contact with her, and one said her bio brother has refused ALL contact with her since first meeting her a few years ago.
I let her know via email: if she goes forward and publishes this book with LIVE identities in it, we will collectively gather to stop it. Anyone that asks me for information on anyone after my grandmother, I don’t do it. If they find death notices, and figure it out, they figure it out. But I will NOT be a party to it.
– your input on this Judy?
TC, the problem with saying you’ll “collectively gather to stop it” is that publishing truthful information that is not embarrassing but just who’s-related-to-who type stuff probably isn’t actionable — meaning you can’t sue to stop it in advance and you may not have a lawsuit if it is published. Most courts won’t stop something before it happens (it’s called prior restraint and it usually violates the First Amendment) and you may not have any damages afterwards, since it would be hard to prove you were actually hurt by somebody saying Person A has children B and C.
And if you do sue, and you succeed, it may actually set a precedent that would be horrible for genealogists everywhere. We’re all sensitive to issues of privacy and the risks of ID theft. But arguing that perfectly truthful factual data on mere relationships should be protected could very well mean that more and more information we want as genealogists will be hidden away from us.
ALWAYS best to get permission before writing any thing down that may eventually wind up on a geneaalogy web site. If any one objects, I just do not include them. I have a separate file for that which gets Put “out there” and another just for my own family use. Keep updating it each one marries, and has children, and or if there happens to be a divorce. ADOPTION information yes, for sure, can be very devesating to those who DO NOT KNOW. and Never would be published while in the persons “Living” status. Could also be detrimental to their descendants, too. Too, even in own family, having not had personal “face time” with a lot Aunt, Uncles and cousins, especially need to be very sensitive to their feelings.
Considering the feelings of others is really what it’s all about, Patricia.
I just had a bit of a stumbling block by someone not wanting peoples names added to my genealogy book that I am in the process of haven written.
I want to add some newspaper obits to my genealogy book that I’m writing. I am requesting permission from the newspaper publishers to add these obits to my book.
But, these obits do have information about the living in them. I really want to add these obits to my book but I’m concerned about the living people who are mentioned in the obits. Doesn’t this information become public knowledge once it is published in a newspaper. Do I just not add the obits because living people are named in them. After all, they published the information to the newspaper. But, where does it end ethically. In KY, we can go on Vital Statistics and get marriage records and the birth of children and the mother’s names who bore the children, etc. It’s all available to the public. It’s been my understanding that if something like this was available to the public, then we could legally use it. I certainly don’t want to be sued over something like a genealogy book. It takes too long to do the research and is too hard to do, to even think of being sued after such hard work.
So, I’m concerned about using these obits in my book. How have people dealt with this concern in the past?
Betty, I can’t imagine that the law would be an issue in any of these cases — republication of already-published facts isn’t likely to give rise to any kind of liability when the facts aren’t scandalous or embarrassing in any way. But living people do have legitimate privacy concerns and may prefer not to be included in such a publication. The Board for Certification of Genealogists takes the position that, ethically, we should have permission from any living person to include information about that person. Rather than take the risk that someone will be offended, why not prepare a copy of the page as you expect it to appear in your book and send it to the person explaining what you’re doing? I have had no problems getting permission from folks, but I would have no problem leaving out any information about a living person to which the person objected.
In the course of doing some genealogy work for a client, I came across some very unsavory information about one of her cousins (still living). This information was in several published newspaper articles found on the Internet, although I did have to dig a bit to find it. Do you present this information to the client, and if so, how do you convey this information in a delicate fashion?
Kady, this is obviously a delicate situation, but you can be guided by some commonsense principles. First, if it’s not precisely within the scope of the genealogy work you were hired to do, you can opt to politely “ignore” it. You can always inform the client that, in the course of researching any family, there are bound to be some facts uncovered that may be unsettling or that a family member might not want disclosed, and ask the client for guidance (“do you want to know about any such information? does it matter to you if the person is living or not?”) and follow the client’s decision.
I am offended by “genealogists” publishing lists that have nothing to do with their own families. One is publishing everyone who ever graduated from local high schools. These are not particularly interesting, make the schools seem as though they are giving out this information–maybe they are?–and includes 2012 graduates. That means people’s children, possibly minors in some cases, are going online without parental consent. Nothing will make this person stop.
I am only interested in the past, not in living persons. Why would anyone need to upset others by treating them not as people but as lists. It is chilling.
Schools have given out lists of their graduates for as long as there have been schools. Among my most treasured records are the published lists of my mother and her brothers and sisters graduating from eighth grade and high school, or appearing in school plays, and more.
This is a good issue. I am finishing a book related to slaves in my town. These were both native indians and from Africa. It contains historic facts and slaves descendants that start from the early 1700’s to present, many that are important and known families. There is the issue that some actual “white” families have ancestors of a black origin. Could this be a matter of a law suit even though I do not publish the names of living people?
Wendy, these days, people sue over literally anything… so the real question is, could they win such a lawsuit? The answer is no. Truth is an absolute defense, and in this day and age no court would declare that having ancestors of a different race would be the kind of humiliating fact that gives rise to liability. At least I would hope no court would do so… and can’t imagine even in the deepest Deep South jurisdictions any high court allowing such a judgment to stand.
… But here is the problem with putting living persons on the internet–while they may not prevail in any lawsuit and others may think their fears and concerns are just plain silly and irrational–they did not ask for the exposure. If someone chooses to expose ANYTHING on a living person, the writer basically brings the drama. I think that if someone asks, take the information down. Unless we walk in the shoes of others, we do not know what someone in the Deep South went through trying to conceal a heritage from the brutality of others. Just be nice to living people, if doing this as a job or a hobby. Don’t go out of the way to tell them how they have NO right to object to your use of their identities. It is easy to find things about anyone on the internet. Very easy.
I agree: if someone asks, take it down.
I am ready to have our family tree printed. Information ( names and birthdates etc. ) obtained from family or internet. In 2 cases not by the family due to them not wanting to give me the information. Can they sue me if I print the information?
Anybody can sue you for any reason. Whether they can win is something you need to discuss with an attorney licensed to practice in your jurisdiction. (And why in the world you’d want to include information about living people who chose NOT to give it to you for publication is beyond me… and violates every genealogical ethics code I can think of.)