Key point 4-04. Many states recognize "invasion of privacy" as a basis for liability. Invasion of privacy may consist of any one or more of the following: (1) public disclosure of private facts; (2) use of another person's name or likeness; (3) placing someone in a "false light" in the public eye; or (4) intruding upon another's seclusion.
A federal district court in Virginia ruled that an insurance company that posted confidential medical records online without security restriction gave "unreasonable publicity" to, and "disclosure" of information about, patients' private lives.
This case suggests that a church may be liable on the basis of invasion of privacy to publishing a "prayer list" in a church bulletin, newsletter, website, or some other resource that contains the names and medical conditions of church members who are either hospitalized or ill.
To illustrate, in another case, a church music director was hospitalized for severe depression. During the period of his hospitalization, the church placed him on a medical leave of absence, and an acting music director was appointed. A few months later, the music director was again hospitalized following a suicide attempt.
A few days after the music director was discharged from the hospital, the church posted an article on its website that contained the following statements: "We have good news for you! Our music director is returning to the church after a long medical leave of absence. Since the summer of last year, he has been treated for bi-polar illness, a condition which at times has resulted in serious depression for him. Various therapies and medications have been tried, and finally, after much experimentation, his health has improved considerably. For that we are all very happy."
The music director was dismissed by the church, and he filed a lawsuit claiming that his dismissal amounted to wrongful discrimination based on disability. He also claimed that the church "invaded his privacy" by printing the notice on the church website regarding his hospitalization and medical condition. A trial court dismissed the privacy claim, but a state appeals court reversed this ruling and ordered the case to proceed to trial. It observed, "The right of privacy is the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned." The court concluded:
The comments made on the church's website were based purely on the music director's private affairs, i.e. his hospitalization for depression. While he did inform those necessary persons about his condition—the pastor and a few close friends who belonged to the church—this cannot be seen as a waiver to enter his private life … . While the church's publication could be based upon informing the congregation of the music director's return to the church, the inclusion of the additional personal information about his bi-polar illness could be viewed as offensive or objectionable to a reasonable person. Therefore … the trial court erred by granting summary judgment based on this claim. Mitnaul v. Fairmount Presbyterian Church, 778 N.E.2d 1093 (Ohio App. 2002).
What this means for churches
These cases demonstrate the potential liability churches face when they publish information on their websites, or in church bulletins or newsletters, concerning the health condition of employees or church members. In order to eliminate this risk, these kinds of disclosures should not be made without consent, even if the purpose is to call the congregation to pray for the individuals. Consent may be obtained in various ways. It can be "express," meaning that no information about the health condition of a member or employee is published by the church in any form without that person's signed consent.
Obviously, larger churches would find it difficult to obtain the express written consent of every member or employee who is ill or hospitalized.
A second type of consent is "implied" consent. This can be obtained by publishing occasional notices in church publications (newsletters, bulletins, websites, and so on) advising members that prayer lists are compiled by the church that contain the names and medical conditions of persons who are known to be hospitalized or ill, and advising members who do not want their name and medical condition published on church prayer lists to so inform the pastor or church office. A list should be made of persons who object to being included on such lists. The same kind of notice can be published in an employee handbook or policy manual. Implied consent is not as effective as express consent, since a member can always claim that he or she did not see any of the notices printed by the church. But, implied consent is obviously easier to obtain. Travelers Indemnity Company v. Portal Healthcare Solutions, 35 F.Supp.3d 765 (E.D. Va. 2014).