More Genealogical Law: Invasion of Privacy

We've talked about defamation, but a far more serious issue for genealogists is "invasion of privacy."

The law generally recognizes four distinct "wrongs" that may constitute "invasion of privacy:" (1) intrusion into private matters; (2) public disclosure of private facts; (3) publicity placing a person in a false light; (4) misappropriation of a person's name or likeness. Each of these generally refers to conduct that is "highly offensive to a reasonable person."

Intrusion into Private Matters

This form of invasion of privacy may be a physical intrusion into a place where a person reasonably expects privacy, or it may be an unreasonable prying into a person's private affairs. Entering into someone's dwelling, or hotel room, or backyard without permission would be an invasion of privacy. Going through someone's trunk or locker without permission likewise would constitute an invasion of privacy. Wiretapping, eavesdropping, peeping, all are invasions of privacy, even if nothing is overheard or observed.

Reading someone's diary or examining their medical records without permission would be an invasion of privacy. Getting private information about a person from someone who is not authorized to reveal it would be an invasion of privacy where it is known that the revealer is without authority.

Repeated telephone calls or visits to someone who has expressed a desire for no calls or visits is an invasion of privacy.

Note that in this first form of invasion of privacy, there need not be any publication or use of information.

Keep in mind that the dead have no privacy rights and that which has already been made public cannot support a claim of invasion of privacy. A person must have a reasonable expectation of privacy and must act to keep his or her affairs private in order to make a successful claim of invasion of privacy.

Genealogists are not private detectives, and being generally decent people, I don't imagine that they'd be eavesdropping, reading someone's diary, or making multiple harassing telephone calls in pursuit of genealogical information.

Public Disclosure of Private Facts

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, (b) is not of legitimate concern to the public, and (c) is publicized without permission. Now this is an area in which genealogists could get into some trouble.

There is no liability for merely giving additional publicity to information that is already public. So, for example, it generally would not be an invasion of privacy to publish facts about someone's life that are matters of public record, such as the date of his birth [but see below], the
fact of his marriage, his service in the military, the fact that he holds some professional or occupational license, or that he graduated from a particular school.

Recall that there can be no invasion of privacy concerning matters that are already public and that a person must have a reasonable expectation of privacy in the matter. Also, the disclosure must be "highly offensive to a reasonable person."

I would caution that this area is constantly evolving. Ten years ago, it was easy to say that a person had no reasonable expectation of privacy in the fact of his birth on a certain date or who his parents were. Today, however, with some states and local jurisdictions making birth and death records confidential, it's no longer clear that a person in such a jurisdiction doesn't have a reasonable expectation of privacy in this information. But consider that under the law most places, the publication of private facts must be "highly offensive." Depending on how it is presented, the publication of a date of birth might fall short of that test.

With respect to genealogy, consider, for example, that the placement of a child in a family due to a "non-paternity event," such as adoption, may be considered private by a family even where adoption records are not highly restricted by the state. [The fact that a child is in a particular family is a public fact--how the child got there might be a private matter].

Publicity Placing A Person in a False Light

Giving publicity to a matter concerning another that places the other before the public in a false light is an invasion of privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

This wrong has things in common with defamation, but the matter publicized need not be defamatory. The American Law Institute says that invasion of privacy in this form exists "only when there is such a major misrepresentation of [a person's] character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable [person] . . . ."

In this wrong, it would be possible to liable for, for example, misrepresenting someone's race, without that being defamatory. It would be possible to negligently commit this wrong by, for example, confusing one person for another. It's also possible to commit this wrong with facts that are individually true, but out of context.

Misappropriation of a Person's Name or Likeness

This form of invasion of privacy is committed by one who appropriates to his own use or benefit the name or likeness of another. In some states, this is limited to commercial use; in other states, the appropriation need not be for commercial purposes. Here's another area where genealogists can fall into traps.

Suppose you use a photograph on your genealogical website without the consent of the persons depicted in that photograph. This use may constitute a misappropriation of those persons' names and likenesses, if you intend to benefit from that use.

This may seem similar to the "right of publicity" discussed here the other day; however, this is not so much about the commercial aspects as it is about "the right to be let alone." Also, since this is about privacy and not publicity, this right is not inheritable, nor does it apply to the deceased.

So that's a sketch of the law on invasion of privacy. Ready for a short quiz? Okay, we'll wait a day or so!