The default for living people
It’s that time of year again, and The Legal Genealogist smiles to see all the family historians scurrying around trying to finish up research projects so they can publish family books as presents in this holiday season.
Except that this can cause major headaches in a major-league way.
The problem was aptly presented by reader Dianne B., who is trying to guide a family member through the sticky wicket of ethical constraints on publishing a family history. Her family member — we’ll call him Uncle Bob — is the family historian and:
He has compiled an extensive family tree right up to the present. Some people have given him their personal info directly, some have provided data for nieces, cousins, etc. and I am not sure whether consent was sought before passing it on to us.
Given current concerns about ID theft, I am wondering about legal issues around publishing this data. I’m not sure everyone has been told the information would be published, although those who provided it probably understood the tree would be shared. The permission is sketchier if individuals did not provide the information directly.
We are inclined to publish a version of the tree that ends at my grandfather’s era, most of whom died in the 1950s and 1960s. (Uncle Bob) is disappointed, and proposes he provide copies of the full tree on demand, and only in print, with a notation that it is not to be shared digitally.
And so, Dianne asks, “are there any guides that can help in making the decision on what to publish and what shouldn’t be included?”
This isn’t so much a legal issue: it’s generally legal to publish accurate information about living people, as long as it doesn’t cause mental suffering, shame or humiliation to a person of ordinary sensibilities.1 And, despite the possible issues of ID theft, simply identifying people as members of a family — children of particular parents and siblings of others, for example — isn’t usually going to cross the legal line.
But just because something is legal doesn’t mean it’s right.
That’s where the ethical issue comes into play — and this is a topic that’s covered again and again in the ethical guides of our field of genealogy.
One of the clearest guides comes from the National Genealogical Society in its “Guidelines for Sharing Information with Others,” updated in 2016:
Aware that sharing information or data with others is important and that it needs continuing support and encouragement, genealogists and family historians consistently–
• inform people who provide information about their families how it may be used, observing any conditions they impose and respecting any reservations they may express regarding the use of particular items;
• require evidence of consent before assuming that living people are agreeable to further sharing or publication of information about themselves;
• convey personal identifying information about living people — such as age, home address, genetic information, occupation, or activities — only in ways that those concerned have expressly agreed to;
• recognize that legal rights of privacy may limit the extent to which information from publicly available sources may be further used, disseminated, or published; …
• are sensitive to the hurt that information discovered or conclusions reached in the course of genealogical research may bring to other persons and consider that in deciding whether to share or publish such information and conclusions.2
In short, when it comes to living people, we need to tell them what we’re going to do with the information, ask them for their permission to include it, and respect any limits they set on it.
Yes, it may be legal to include their information anyway. But let me repeat: just because something is legal doesn’t mean it’s right.
What’s right for living people — the ethical default setting for living people — is opt-in: the right way to include living people in our published work is for them to specifically agree to be included.
It’s never right to include them without their specific permission after making sure they understand exactly what information is being included and what’s going to be done with it.