Invasion of Privacy
By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m29
1. DEFINITIONS
In the past few decades, the subject of invasion of privacy has achieved considerable attention. Actually, the term invasion of privacy encompasses four separate kinds of conduct.
a. Public Disclosure of Private Facts
One who gives publicity to the private life of another is subject to liability for invasion of his privacy if the matter publicized is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public.1 The key elements of this form of invasion of privacy are (1) publicity (2) of a highly objectionable kind (3) given to private facts about another. Publicity is defined as a communication to the public at large, or to so many persons that the matter is substantially certain to become one of public knowledge. Thus, it is not an invasion of privacy to communicate a fact concerning another's private life to a single person or even to a small group of persons.2 But a statement made to a large audience, such as a church congregation, does constitute “publicity.”
The facts that are publicly disclosed must be private. There is no liability if one merely repeats something that is a matter of public record or has already been publicly disclosed. Thus, a minister who makes reference in a sermon to the prior marriage or prior criminal acts of a particular church member has not invaded the member's privacy; such facts are matters of public record. Many other facts—such as dates of birth, military service, divorce, licenses of various kinds, pleadings in a lawsuit, ownership of property, and various debts—are matters of public record. References to such facts will not invade another's privacy.
Finally, the matter that is communicated must be such that a reasonable person would feel justified in feeling seriously aggrieved by its dissemination. This type of invasion of privacy is perhaps the most significant for ministers, since ministers typically are apprised of many private facts about members of their congregations and they have innumerable opportunities to divulge such facts. Ministers must exercise caution in divulging private facts about members of their congregations, even when the communication is positive in nature and contains information that is factually true (and accordingly could not be defamatory). For example, a minister publicly comments on the sordid immorality of a recent convert to his church, intending his remarks to be complimentary. He nonetheless has publicized private facts about the member under circumstances that may be highly offensive. The minister under these circumstances may well have invaded the privacy of the church member.
b. Use of Another's Name or Likeness
Another type of invasion of privacy is defined as the unauthorized use of another's name or likeness for personal or commercial advantage. To illustrate, if a company uses a child's name or picture in its advertisements without consent of the child or the child's parents, the company has invaded the child's privacy. The person whose name or likeness is used need not be a public figure. Churches may commit this type of invasion of privacy by publishing a picture of a person without his or her consent.
c. False Light in the Public Eye
One who gives publicity to a matter that places another before the public in a false light is subject to liability for invasion of that person's privacy. However, the false light in which the person was placed must be highly offensive to a reasonable person, and it must have been publicized either with a knowledge that it was false or with a reckless disregard concerning its truth or falsity.3
A minister who ascribes to other persons beliefs or positions that they do not in fact hold may have invaded their privacy. In preparing sermons or articles, ministers must be careful not to attribute to other persons opinions, statements, or beliefs that are not in fact held.
d. Intruding Upon Another's Seclusion
One who intentionally intrudes upon either the solitude or private affairs of another is subject to liability to the other for invasion of his privacy if the intrusion would be highly offensive to a reasonable person.4 This is committed if one without consent enters another's home, inspects another's private records, eavesdrops upon another's private conversation, or makes persistent and unwanted telephone calls to another. In some cases, it can be committed by unauthorized entry into a hospital room. To illustrate, a minister who enters a hospital room without consent and peers behind a closed screen may have invaded the privacy of the patient.
2. DEFENSES
If the victim consents to the invasion of his or her own privacy, this is an absolute defense. Statements that are made in judicial proceedings, that are required by law, or that are exchanged between husband and wife or attorney and client ordinarily cannot constitute an invasion of privacy. Further, statements relating to a matter of common interest—such as statements between members of a church relating to the qualifications of church officers and members—generally cannot serve as the basis for invasion of privacy.
3. THE PRIVACY ACT OF 1974
Considerable confusion surrounds the scope of the Privacy Act of 1974. The Privacy Act was enacted to permit persons (1) to know of any records about them the government is collecting, maintaining, and distributing; (2) to prevent government records about them from being used without consent and for purposes other than those for which the records were first acquired; and (3) to correct and amend such records if necessary. Significantly, the Privacy Act applies only to records maintained by the federal government and some federal contractors. It has no relevance to church records.
The Freedom of Information Act requires that each federal agency promptly make available to any person upon request any identifiable record, subject to various exceptions.5 The act also mandates the publication of certain categories of agency information in the Federal Register, and requires that various other kinds of records be made available for public inspection and copying. The purpose of the Act is to promote public access to the information in the possession of federal agencies. Several states have enacted similar laws applying to state agencies. None of these laws applies to churches or other nonprofit religious organizations.
4. “SUNSHINE” LAWS
Related to the Privacy Act are the various public meeting or “sunshine” laws that have been enacted by the federal government6 and several states.7 Such laws typically provide that meetings of all governmental bodies will be open to the public unless specifically exempted. One court has held that a state public meeting law applied to a private, nonprofit corporation organized to perform a governmental function and supported almost exclusively by tax revenues.8 It is unlikely that such laws will ever be amended or construed to apply to churches and religious organizations.
For related information on this topic see the following articles: