Published on Jul 1, 2015
Privacy is an important notion in modern society and in modern law. It may come as a surprise to learn that the right to privacy, enshrined in canon law, in modern human rights law and in many nations' Constitutions is of relatively recent vintage in the course of human history. Democracy and national Constitutions have only been around for a few hundred years. With the advent of self-governing nations, comes the need for an educated populace and an ability to share information. In addition to political factors, technological factors have influenced our burgeoning notions of privacy. Never has it been possible to know so much information about so many things as it is today. The shifting needs for information, and the shifting role of technology in obtaining, preserving and sharing information gives rise to a need to reflect on the limits we place on information and communication. This is particularly true with information that is viewed as private, sensitive or potentially harmful.
Canon Law provides protection for privacy in three places that are of particular interest for Religious Life. The first is Canon 220:
No one is permitted to harm illegitimately the good reputation which a person possesses nor to injure the right of any person to protect his or her own privacy.
This canon applies to all persons, not only Religious. However, it does not give a definition of privacy, nor does it set out the scope of this privacy. Nevertheless, it is an important step forward. The canon is new to the 1983 Code, and comes from an effort on the part of the legislator to protect fundamental human rights within the Church.
Another reference to privacy comes in the canon that describes the provision for confession in religious houses. The canon also speaks to privacy of members and manifestation of conscience.
Can. 630 §1. Superiors are to recognize the due freedom of their members regarding the sacrament of penance and direction of conscience, without prejudice, however, to the discipline of the institute. …
§4. Superiors are not to hear the confessions of subjects unless the members request it on their own initiative.
§5. Members are to approach superiors with trust, to whom they can freely and on their own initiative open their minds. Superiors, however, are forbidden to induce the members in any way to make a manifestation of conscience to them.
When we enter into a Religious Institute or Society, there is a need to yield some rights that we otherwise enjoy, in order to enter into a mutual relationship with the community and its members. However, we do not surrender all our rights. And in particular, those in authority in religious life may have occasion to know private information about members. They must be particularly cautious not to violate the privacy through “inducing a manifestation of conscience” or through publicizing private information of members.
Finally, in the course of vocation work, psychological assessment of applicants has become routine. Canon 642 gives the grounding for this practice, allowing for the use of experts in assessing the health, character and maturity of applicants. Nevertheless, it cautions that the privacy mentioned in Canon 220 above must be safeguarded:
Can. 642 With vigilant care, superiors are only to admit those who, besides the required age, have the health, suitable character, and sufficient qualities of maturity to embrace the proper life of the institute. This health, character, and maturity are to be verified even by using experts, if necessary, without prejudice to the prescript of can. 220.
As we enter into community, and as we live, pray and work together, we come to know a great deal about one another. Some of the information we know is more sensitive, and in addition to natural deference to one another's privacy, there are canonical protections.
In civil law as well, there are protections for privacy. In addition it is important to understand the overlapping requirements of privacy, confidentiality and privilege. These related, but distinct terms may be used indiscriminately in the media. Therefore when we come into a situation that implicates them, particularly in the work of leadership, it is important to be clear on their meaning in the legal context.
Privacy acknowledges a distinction between the private sphere and the public sphere. There are privacy rights and expectations in living spaces, in personal correspondence and personal electronics, and in certain personal information, e.g. healthcare information.
Confidentiality refers to the responsibility of certain professionals to refrain from disclosing information and communication obtained in their professional capacity. For example, attorneys with respect to their clients, and doctors with respect to their patients. We would also acknowledge that certain communications within our religious communities are confidential, whether or not those communications are protected by civil law.
Privilege is the right to withhold certain communication from being brought into light through legal process. Generally, in a lawsuit, opponents can obtain a broad range of information from each other through the process of discovery. Privilege shields certain confidential communication described above from this process.
In addition to these three concepts, some religious communities operate health-care facilities that are bound by more stringent privacy requirements regarding health-care information of patients, even if those patients are members of the community. Even outside these legal requirements, while we can share information about one another, this sharing should be respectful of the privacy wishes of each person.
Finally, in our religious institutes, we create, use and maintain records, some of which contain information which is private. It is important that in our records management, we balance the needs of the community for information with the legitimate expectation of the members for privacy.
For more information about Privacy in religious institutes and societies, you may wish to register for the August Webcast on Privacy in Religious Life: www.ahereford.org/registration
Canon Law 101: this popular webcast series introduces participants to the principles of Canon Law. On-Demand, listen at your convenience, or order iton re-usable USB drive. www.ahereford.org/CL101.
Covenant Project: this webcast series familiarizes participants with options available to aging communities. Also helpful for communities called on to assist others. Live, On-Demand or on re-usable USB drive. www.ahereford.org/covenant
I may meet many of you in person at one of these national meetings: I will be have an exhibit booth at LCWR in August, Then in October, I will be speaking at RCRI about Aging Institutes and at CLSA about New and Emerging Religious Life. Please let me know if I can be of assistance to you or your organization.