Submission Date:
Question:
As part of a town bicentennial celebration, the committee wants to create a map of historic properties. There would be a description of the property noting its historic significance, the address, and ideally a photo. Many of the properties are privately owned. Do owners need to give permission for their property to be included? We would publish the address and describe the history of the property, but current owners' names would not be disclosed. We want to share history, but respect privacy. What legalities should we be aware of?
Answer:
In addition to being something of a historic preservationist, I am also a design fan, and a booster for my adopted hometown of Buffalo NY. This means I am on several social media groups that discuss:
- Historic properties,
- Design of both private and public buildings, and
- Issues that impact the built environment (landscaping, planning, urban design).
On these groups, there is regularly a debate about the legalities, ethics, and diplomacy of taking pictures, providing information, and commenting in a public forum about privately owned property.
Issues that are frequently raised include:
- Privacy
- Safety
- Harassment
- Risk of a claim of defamation
- Cultivating ill-will
The issue can also take on tension if a person lives in a home they prefer to not have considered "historic," which can place added pressure and actual legal restrictions on the owner of the home.
On the flip side, many who proudly own "historic" or otherwise noteworthy properties glory in their building's appearance and history. These are people who not only want their structure listed in print and online resources, but carry a jump drive they can distribute easily to make sure the building is described properly.[1]
When it comes to the risks of listing historic properties in a printed or online resource, there are very few direct legal issues. With the exception of certain high-security locations, it is not illegal in any way to publish information related to real property, its ownership, and its historic nature (or other significant factors). In fact, although not everybody realizes it, such information is generally available to the public in the form of tax maps, real property deeds, and other information housed by a county clerk.
That said, and in answer to the member's question, legal concerns can arise if a resident or owner can attribute negative consequences directly to the listing. For instance, if a listing suggests that a property is open to the public, when in fact it is not open, a property owner could have legal recourse. Similarly, if a write-up is directly connected to resulting harassment or vandalism, there could be an allegation of legal responsibility[2]--although such allegations would not lead to liability unless a precise set of factors were present.[3]
The stakes can also be higher when the listing is the result of a formal publication by an actual entity, such as a local library, historical society, religious corporation, or not-for-profit corporation. This is because such organizations typically have a larger platform to communicate from, and are also perceived as having "deep pockets,"[4] as well as insurance. They are also more vulnerable to public criticism, since they depend on public good will.
How can an organization mitigate such risk? Here are three steps:
Step 1. If your organization is going to publish a guide, check with the organization's insurance carrier to see if its insurance includes coverage for "advertising injury" and other claims related to publication. While not every "general liability policy" has this feature, it is a fairly common type of coverage, and any group that is regularly publishing brochures or pamphlets--or even listing information on its website--should consider getting coverage for allegations of defamation and copyright infringement.
2. Early in the initiative, decide what the precise criteria is for inclusion in your directory[5], and if your directory of local historic properties will have an "opt out" for people who don't wish their property to be listed or depicted.
3. Once the criteria and any option for "opt out" is determined, consider using a form to notify people of the directory, and to allow people to supply information about their property or to opt out. For instance:
Dear NAME:
[Info about your organization, upcoming event, pleasantries, etc.]
The NAME is preparing a directory of local historic properties, including your historic property at ADDRESS.
The criteria for the listing in the directory are INSERT. The listing will include the address, a photo taken from the street, and a brief history of the property. We will ensure there is no automobile with a legible license plate or people in the image.
To personalize this initiative and add depth to our information, we would like to provide you with an opportunity to send us information about the property, including any work you have done to steward it over the years, and any photos or legacy information you may have. You can send anything you like to INSERT ADDRESS. By sending information, you are giving the NAME a license to adapt it for use in the directory (both print and online), only.
In addition, because we appreciate that not everyone will want to supply information or have a picture of their property included in the directory, we are providing an "opt out" of the photo depiction. If you do not want a photo of your property included in the directory, please check the box below:
Please do NOT include a photo of my property at ________________ in the directory. I understand this "opt out" is a courtesy and information regarding my property is part of the public record.
The directory text will be finalized by DATE and we anticipate publication by DATE. Therefore, to be able to include your materials or remove a photo, we appreciate your reply by DATE.
[nice things, etc.]
[signature]
If at all possible, the organization's attorney should review the final letter before it goes out, which will allow the organization to address any concerns specific to the project or the particular locality.
Thank you for submitting an interesting and sensitive question. Respect for those who steward historic structures is important...as is celebrating the legacy they preserve.
Happy bicentennial!
[1] Woe betide your guide if a "coppice" is mistakenly called a "cornice."
[2] I have never heard of a directory of historic properties being used to "dox" (harass via release of private information) somebody, but I can imagine it happening.
[3] For example, if the write up said "This is the historic Bailey mansion. Legend has it if you throw a rock through a window, your wish comes true. Bring a rock and have at it!"
[4] As in, money to pay for damages.
[5] Is it on the state registry, federal registry, or considered "historic" due to a local designation? Or are the criteria simply that the structure was built before a certain year, hosted a significant event, or was once owned by a noteworthy person?
Tag:
Historical societies and museums, Privacy, Safety, Templates
