Reference Centre, Genealogy 101

Ethical Considerations in Recording your Research

Borne out of the fact that you are researching the history of an individual and committing that information to paper there arises certain legal and ethical issues.  Issues of a legal nature are concerned with the laws protecting privacy, permitting freedom of information, copyright, and the publication of defamatory material.  Legal issues will be addressed in future tutorials.  Issues of an ethical nature are more circumspect and subjective and require the researcher to weigh perceived benefits against risks in obtaining and circulating some types of information.

Is it necessary or even ethical to include certain unpalatable or inflammatory pieces of information in your family book or in your circulating research?  The answer to this question is both complex and problematic and involves various legal rights and ethical considerations.

Insofar as the legal aspect of the answer is concerned there are the following points to consider:

• the definitions of libel and slander and the operation of the law in respect of each;
  
  
• any rights of a deceased person; and,
  
  
• the rights to freedom of speech.

Libel and Slander in Recording Research

Both terms refer to the publication of false reports concerning a living individual that are meant to do harm to the good name and reputation of another.  In order for libel and slander to occur communication of the damaging material must be made to a third party.  Slander is used to denote verbal statements that communicate the damaging material while libel occurs through a written account or reports of an event.

Additionally, in both instances, the statement or communication, even if true, must be made without malice or in such a manner that the statement could not hold the injured party up to public ridicule or disgrace.

Of course, the perfect defense against any action for defamation is to prove that the statement is true.  But any defense would also have to prove that the statement was made without malice, as noted in the previous paragraph.  Professional critics are afforded a certain degree of latitude in that they may express any opinion, however exaggerated or inaccurate, as long as their opinion is honestly and sincerely held and not simply the outworking of personal or spiteful feelings.

The Rights of a Deceased Person

Except under extraordinary circumstances, a deceased person has no rights under the law.  Any right of action to sue for defamation of character dies with the person who is defamed.  Consequently, any other person is barred from bringing an action for defamation on behalf of the deceased, or an action for damages for injuries to his own personal reputation because of that defamation.

Similarly, most rights an individual has to privacy also die with the individual.  Privacy laws have been instituted to protect the privacy of the living, or possibly living, even though the operation of those laws may bar the release of information of someone who is deceased.

The Rights to Freedom of Speech

Freedom of speech permits us to speak the truth about any matter but only within the confines of the law and not above it.

Impact on recording your Research

Ah, so you are wondering what any of this has to do with your research and the sharing of your information with other interested parties.

Let us consider the plight of a living illegitimate child.  Even today, in some pockets of society, illegitimacy is looked upon as being a grievous religious sin.  In consequence, the child, along with his or her mother, is cast out their family and social circle.  If the illegitimacy had been successfully concealed and that child rose to a position of influence within that culture, revealing the facts of that child's birth would likely result in the public disgrace of that child.  You may be able to prove the facts of your statement.  But, could you prove that your statements made concerning the facts were made without malice?  In the case of a living individual, the answer would be 'likely not', especially if you knew of the possible consequences that individual could suffer following your statement.

Furthermore, in most Canadian provinces as well as throughout the British Isles an illegitimate child becomes officially legitimate if his or her birth parents subsequently marry each other.  Thus that child will be entitled to enjoy the same full rights and privileges of any child born during a marriage, including the right to be known as a legitimate child of the marriage.  Consequently, by specifically directing another's attention to the illegitimate circumstances of a child's birth, beyond the recordal of vital statistics, you could technically be defaming that child if that child is still living.

So, then, how does one show such a living child on a descendancy or family group chart?  If that child is known to be a child of birth parents who subsequently married the child should be shown as the first child of that marriage with their actual birthdate.  In this way you have recorded the facts and remained within the law.  If the father of the child is unknown then, technically, that child must be shown separate from the family unit.  If that child is adopted by the mother's husband, the child must be shown with the family group.  A statement to the effect that the child is the natural child of the mother but adopted by the father can be included with the child's entry.

In the case where there has been an illegitimate birth in a previous generation and the child is no longer living you have the legal right to treat that child as you please.  Perhaps that child created much grief for his family and for descendants.  Perhaps because of that you may hold some very strong opinions about that person.  Whether or not your statements have any factual basis, you are free to espouse those views regardless of any ill effects those views may create for his or her direct descendants.

Advocates of freedom of speech "at any cost" I am sure will have their day with me for what I am about to say.  Yes, I believe strongly in the right to enjoy freedom of speech but I believe just as strongly in the moral and ethical duties we owe to others in our society.  We, as historical researchers, must remain impartial and objective in our pursuit of knowledge.  Objectivity and impartiality require us to keep personal views to ourselves and, in fact, demand that we set aside our own personal views.

Some will argue that writing a biography or sharing an interesting tidbit of newly-found information would become as dry as dust without the opportunity of injecting some of our own colourful opinions.  I have two viewpoints on that type of thinking.  The conveying of facts surrounding a family story usually, in its own right, provides any entertainment factor.  Secondly, to needlessly add any unfavourable personal viewpoints to the facts of the story may create within your reader, particularly if that reader is a descendant of the subject individual, a sense of animosity towards the remainder of your research and a sense that their own self has been slighted in some way.  Thus, we must realize that some aspects of a personal history really ought to be handled with due consideration of a descendant's feelings.

At law, I would be protected if I saw fit to besmirch the character of the man who had been the cause of the death of one of my ancestors in Devon, England as both parties are deceased.  Ethically, however, I do not believe that I have such a right even 250 years after the fact.  I do not know what that man's circumstances were that drove him to commit that crime.  Nor do I know whether or not that man was medically or mentally fit at the time of the crime.  I have not researched the background of the perpetrator.  So, I must, on ethical grounds alone, stick to reporting the facts and not further compound the historical injury.  I can, of course, include in my biographical sketch, my observations and suppositions on the effect of the crime on my ancestor's family.

Whenever you are faced with the decision of whether or not to include inflammatory information in your research decide first if you would be within your legal rights to include that information.  Consult your solicitor for expert guidance if the need arises.  Then ask yourself the following questions, which will help guide you in determining the ethical boundaries:

• Is the information a recordal of the facts?
  
  
• Have you, in any manner, allowed your own personal views to creep in?
  
  
• Do you have factual proof of every statement that is to be made, or merely the second-hand report of another?
  
  
• If the information pertains to a living individual, do you have that person's written permission to incorporate the information into your circulating research?
  
  
• Is there another method by which potentially embarrassing information could be presented?
  
  
• Can the event be framed within the context of the political, social, or economic factors at play during that era?
  
  
• If your information is of a nature that could create serious embarrassment to a descendant of an individual, how are those descendants likely to react to or perceive the information.

Recognize that customs other than your own may be generally accepted or condoned in other cultures.

View every event in terms of your ancestor's political, social and economic standing.  An ancestor's personality traits are only one facet of his or her being.  Their personalities and character were shaped by hereditary and many interconnecting environmental factors.  Their lives, like yours today, were shaped by a combination of factors - their personalities, their parental upbringing, their level of education and the opportunities available to him or her for social and financial betterment.