Breaching a Child’s Confidentiality
posted by Daniel Solove
Over at the NYT blog is an interesting story about a British writer (Julie Myerson) who has published a memoir about her son’s drug addiction (The Lost Child). Her 20-year old son has criticized the publication of the book. According to the Telegraph (UK):
The 20-year-old said: “What she has done has taken the very worst years of my life and cleverly blended it into a work of art, and that to me is obscene.
“I was only 17, I was a confused teenager, I was too young really to know who I was or what was happening.
“What she describes in her book are a series of incidents, it’s not who I am and I find it very sad that she feels the need to tar me with the ‘drug addict’ brush.
“She’s been writing about me since I was two, and, quite frankly, I’m not surprised by anything she does any more.
The NYT Blog asks:
Is it inappropriate and even harmful to expose the private lives of minor children, in particular? What privacy lines should be observed, if any, in writing about family members and others?
It contains responses from four people, Alison Gopnik (a psychology professor), David Matthews (author), Melanie Gideon (author0, and Michael Greenberg (author). For example, Author David Matthews writes:
Nothing is off limits as far as I’m concerned. Whether an author wants to risk fraying familial and social ties in the pursuit of the truth (as they see it) is a question left up to the writer.
Matthews’ response strikes me as rather extreme. In Britain, family members owe each other duties to keep private information confidential. In the US, the breach of confidentiality tort applies to doctors, lawyers, and others, but hasn’t been extended to friends and family. Perhaps it should be.
According to the Telegraph article, Myerson’s son said:
“I even consulted a lawyer to try to stop it, but was told there wasn’t much I could do, so I made her take out the part where she said I was selling drugs to my 12-year-old brother, which was one of her fantasies.
I’m surprised that he was advised the law didn’t protect him, since the book was published in Britain and he’d likely have a decent case under British precedent.
The Myerson case is increasingly becoming more common. Numerous bloggers are chronicling the lives of their children online, posting photos and a day-by-day account of their lives. What happens when these children grow up and resent having their entire childhood permanently recorded for the world to see?
Should family members owe each other a duty of confidentiality? Should parents write about a child’s life without that child’s consent?
Hat tip: PogoWasRight
September 1, 2009 at 7:40 am
Posted in: Family Law, Privacy, Privacy (Gossip & Shaming), Tort Law
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Responses (8)
Jennifer Hendricks - September 1, 2009 at 10:47 am
Calvin Trillin has said that it depends on the quality of what you are writing. “If you have reason to believe you are another Dostoyevsky, there is no reason to be concerned about the effect what you write might have on the life of some member of your family. Your art is considerably more important than any such consideration.” But everyone else needs permission.
krs - September 1, 2009 at 1:26 pm
Is your question about what the law should have to say about this or what ethics and/or common decency should have to say?
I think David Matthews’s view should be the view of the government, but that doesn’t mean that it was a good idea to publish the book.
Scot B. - September 1, 2009 at 1:40 pm
I think as the subtitle of the book points out, this is as much the mother’s story as the child’s. She could have used a pen name to save him some embarrassment, but if he put her through an ordeal then embarrassment is the least of what he deserves.
If I see something happen, if I experience something, I need nobody’s consent to write about it.
Dissent - September 1, 2009 at 2:58 pm
She may have a right to tell her story, but I do not think that her right trumps his right to information privacy.
The mother is creating a written and durable record about her child that will follow him and perhaps interfere with his future chances of getting a job, etc.
We spend so much time teaching our kids not to reveal too much about themselves on the internet, and yet this mother revealed personal information that may haunt him forever.
Do we even need to talk about this in the context of any familial or maternal duty? What about the concept of information privacy? If a stranger revealed all of this information about the young man, would that have been acceptable?
Dave - September 1, 2009 at 11:34 pm
The reason we have privileges in other contexts (lawyer/client, priest/penitent) is that we think they are essential to constructing those professions in a particular way. We want penitents to unburden themselves to priests without fear that priests can then be forced to divulge the content of confessions; otherwise the institution of confession would falter.
Within families, we could certainly imagine that similar protections against forced revelation might make sense. In fact, we have them in some contexts (spousal evidentiary privilege, for example). But here the issue is different; not whether someone should be protected from making revelations against their will, but whether they can be prevented from making revelations against someone else’s will.
I’ve always felt that these kind of intimate revelations are cruel because they amount to self-aggrandizement or -indulgence at the expense of loved ones’ privacy and dignity. And while we tolerate involuntary embarrassment or exposure when the object is a celebrity who has sought the public spotlight, this rationale obviously does not track where, as here, the person exposed is a minor.
Whether my instincts (obviously not widely shared) about the cruelty of these intimate revelations warrant a rule of law penalizing these kinds of revelations (e.g., a right of privacy in minor children against revelations of confidences by parents) is another matter entirely. I suppose, one could say, this is simply another kind of parental neglect: some parents stuff their kids full of junk food, others are cold and loveless, and still others expose their children’s personal humiliations and struggles for the world in exchange for some literary fame. The law typically allows parents to be awful (within some fairly broad limits) so perhaps this is another area where we do not want the state interfering with family life, however dysfunctional that life may seem
Dissent - September 2, 2009 at 6:10 am
You raise an interesting point, Dave, but publishing a book about your family is not part of family life as much as it is disclosure of private information obtained within the context of family life. So I might argue that interfering with disclosure does not constitute interfering with family life itself.
Certainly I would not want a broad law that says parents can never divulge sensitive information about their child, as normal parenting requires us to do so as good parents — whether it’s to share information or concerns with our child’s doctor(s) or in discussions with our child’s school.
But here we have a young man who is old enough to either consent or not consent to his details being made public for nonessential purposes and he did not want this published. Even if he has a cause of action after the fact, I think he should have had some protection from this disclosure of his sensitive information.
Scot B. - September 2, 2009 at 11:26 am
What right of information privacy? It doesn’t exist. The parents, for good reasons, have discretion and most of the time are glaringly indiscreet. The only time parents normally keep quiet is when the story reflects badly on them.
Alice - September 14, 2009 at 11:29 am
Thanks for this post (and thanks to Professor Citron, who led me to it) on a topic that has been bothering me for awhile — minor children’s rights to privacy, especially in the context of pervasive “reality” shows. It is troubling indeed to be barraged with, for example, the train wreck of Jon and Kate, but it seems almost criminal to subject minor children to a spotlight for which they cannot consent. These shows go beyond any sort of incidental exposures that are a part of life in society and seem to exploit both privacy and labor. I would certainly welcome further discussion and education on this subject.
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