Invasion of Privacy
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 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.
The term invasion of privacy encompasses four separate kinds of conduct. Some states recognize some or all of these varieties of invasion of privacy. Some states do not recognize all four kinds of invasion of privacy. See, e.g., Mulinix v. Mulinix, 1997 WL 585775 (unpublished, Minn. App. 1997) (invasion of privacy not recognized in Minnesota); Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85 (Tex. App. 1997) (“false light” invasion of privacy not recognized in Texas).
1. PUBLIC DISCLOSURE OF PRIVATE FACTS
Those who give publicity to the private life of another are subject to liability for invasion of 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. RESTATEMENT (SECOND) OF TORTS § 652D. 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. 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. Id. at § 652D comment "a". 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, since 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 ordinarily will not invade another's privacy.
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 often are apprised of private facts about members of their congregations, and they have innumerable opportunities to divulge such information. 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 so would 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 have invaded the privacy of the church member.
- A Michigan court ruled that a minister may invade the privacy of a church member by disclosing to the congregation information that was communicated to him by the member in the course of a confidential counseling session. Smith v. Calvary Christian Church, 592 N.W.2d 713 (Mich. App. 1998). A church member (the "plaintiff") confessed to his pastor that he had previously committed adultery with prostitutes. The pastor decided to communicate this information to the entire congregation, including the member's wife, family, and friends. The pastor insisted that he did not believe in confidential communications and that church doctrine required exposing sins to the congregation. The member claimed that the pastor had been motivated not by religious doctrine but by ill will and the intent to humiliate him and create dissension within his family. The disgraced member sued his pastor and church, alleging that the pastor's disclosure amounted to an invasion of privacy. The court noted that invasion of privacy may consist of a number of different offenses, including public disclosure of embarrassing private facts. In order for the plaintiff to prove this kind of invasion of privacy, he would have to establish (1) the disclosure of information, (2) that is highly offensive to a reasonable person, and (3) that is of no legitimate concern to the public. The court concluded that "a jury must determine whether a public disclosure involves embarrassing private facts." It concluded, "[W]e believe that plaintiff has pleaded that [the pastor] disclosed to the congregation plaintiff's previous contacts with prostitutes, that this information was of no legitimate concern to the public and was conveyed to the congregation with the intent to embarrass plaintiff and cause him severe emotional distress. Whether [the pastor's] conduct was sufficiently outrageous or extreme is a question best left to the jury." The court cautioned that it was assuming that the plaintiff was not a member of the church as of the date of the pastor's disclosure. If the plaintiff were a member on that date, then the court insinuated that the First Amendment would prevent it from resolving any "intentional tort claims."
- An Ohio court ruled that a church could be sued for invasion of privacy as a result of an announcement on the church's website disclosing its music director's psychological disorder. The music director missed several weeks of work due to depression. After he was cleared to return to work by his physician, 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 sued his church for invasion of privacy. The court noted that "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 his 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." Mitnaul v. Fairmount Presbyterian Church, 778 N.E.2d 1093 (Ohio App. 2002).
2. USE OF ANOTHER'S NAME OR LIKENESS
Another type of invasion of privacy is 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, especially if they expect a financial benefit by doing so.
3. 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. Id. at § 652E (1977).
A minister who ascribes beliefs or positions to others that they do not in fact hold may have invaded their privacy. See, e.g., F.G. v. MacDonell, 696 A.2d 697 (N.J. 1997) (minister placed female church member in "false light" by the way he informed the congregation of a sexual relationship between the woman and another pastor). 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.
- An Illinois court ruled that it was not barred by the First Amendment from resolving a pastor's invasion of privacy lawsuit against a church that had sent out a letter containing information that damaged his reputation and led to his unemployment as a minister. The letter was sent out following the revocation of the pastor's ordination, and stated that in light of this fact the pastor could "no longer function in the role of a minister" or "accept the title 'Reverend' or 'Pastor' or any such other title that would imply that you have credentials for spiritual leadership and ministry." The court concluded that this evidence raised legitimate questions "as to whether the letter placed the pastor in a false light "by portraying him as having been stripped of all right to be a minister." The court rejected the church's claim that there was no false light invasion of privacy since its letter did not place the pastor in a false light "before the public." The court defined "before the public" to mean "communication to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Duncan v. Peterson, 2005 WL 2291285 (Ill. App. 2005).
- An Oregon court ruled that a pastor was guilty of invading the privacy of a church member and his wife by making public statements placing them in a false light. Muresan v. Philadelphia Romanian Pentecostal Church, 962 P.2d 711 (Or. App. 1998). A church member's three children were injured when the car they were driving was struck by the daughter of another church member. The pastor informed the church board, and the congregation itself, that the father whose children were injured was having his children pretend to be injured in order to obtain a larger settlement from the other driver's insurance company. Neither the pastor, nor any other church member, ever investigated the facts to ascertain the extent of damage done to the car or the injuries suffered by the passengers. The pastor did not know whether the children, in fact, were injured by the accident. The children's parents sued the pastor, claiming that he had defamed them and invaded their privacy. They also sued the church as the pastor's employer. The jury determined that the pastor's statements placed the parents in a false light by repeatedly accusing them of falsifying their children's condition to obtain a larger insurance settlement.
4. INTRUDING UPON ANOTHER'S SECLUSION
One who intentionally intrudes upon either the solitude or private affairs of another is subject to liability for invasion of privacy if the intrusion would be highly offensive to a reasonable person. Id. at § 652B. 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.
There are a number of defenses available to ministers who are accused of invasion of privacy. These include consent by the alleged victim; statements made in judicial proceedings; statements that are required by law; or statements that are exchanged between husband and wife or attorney and client. In addition, statements pertaining 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 constitute an invasion of privacy.
6. THE PRIVACY ACT OF 1974
The Privacy Act of 1974 was enacted to permit citizens (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. 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 federal agencies promptly make available to any person upon request any identifiable record, subject to various exceptions. 5 U.S.C. § 552(a)(3). 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.
7. "SUNSHINE" LAWS
Related to the Privacy Act are the various public meeting or "sunshine" laws that have been enacted by the federal government 5 U.S.C. § 552b. and several states. See generally Annot., 38 A.L.R.3d 1070 (1971 & Supp. 1999). 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. Seghers v. Community Advancement, Inc., 357 So.2d 626 (La. 1978). It is unlikely that such laws will ever be amended or construed to apply to churches and religious organizations.