There are few voices in our society that represent the rights of victims of abuse and violence. Despite the powerful allies in the media, and academia with unlimited resources who rallied to support Loftus against Taus, and despite intense scrutiny by three different courts, Taus's claim of invasion of privacy has stood firm.
We do not know what the courts will ultimately decide about the facts claimed by Taus and disputed by Loftus, but we are pleased that Taus is being allowed her day in court.
We got involved in this case because we were concerned with the Taus' claims that Loftus misrepresented herself as a colleague of Dr. Corwin, a trusted physician Taus had known since childhood, in order to gain access to private information about her mental health. Legitimate scientific research does not depend on subterfuge or fraud to gather data. As an organization that supports ethical applications of psychological science, we are pleased that the Supreme Court of California recognized that ethical considerations do matter in journalistic or scientific investigation of private information. This is a victory for anyone who values their right to privacy, particularly victims of abuse and trauma.
The reasoning of the Supreme Court closely mirrors the concerns we expressed in our brief to the Court on this issue.
In our brief we argued:
"Is any enterprising researcher permitted to hire a private detective to obtain otherwise secret or confidential data? Is any researcher who claims that a procedure or experiment would benefit society justified in overriding the rights of the individuals involved? Is misrepresentation to be considered part of the legitimate arsenal of scientific inquiry?
Allowing unlawful behavior by researchers would set a precedent that would promote lawlessness, bias, and intrusion on individual privacy by any investigators who feels passionately about his or her area of study. Unchecked, such tactics would place every research subject in California at risk and cast a taint on all legitimate efforts to study human behavior. Without the assurance of confidentiality and respect for their private lives few people will be willing to participate in scientific studies - particularly on sensitive and highly personal subjects." [excerpted from Amicus Brief of the Leadership Council]
Similarly, the California Supreme Court held:
"We believe it is important to recognize that there are at least some types of misrepresentations that are of such an especially egregious and offensive nature - and are quite distinguishable from the types of ruses that ordinarily may be employed in gathering news - that they properly may be considered "beyond the pale" for purposes of the intrusion tort, even when the misrepresentation is made to friends or relatives of the subject of an inquiry who are under no legal obligation not to reveal private information about the subject of the inquiry....
In our view, intentionally misrepresenting oneself as an associate or colleague of a mental health professional who has a close personal relationship with the person about whom one is seeking information would be a particularly serious type of misrepresentation, and one significantly different from the more familiar practice of a news reporter or investigator in shading or withholding information regarding his or her motives when interviewing a potential news source....
"Special legal protection is provided to information communicated in the course of a physician-patient or psychotherapist-patient relationship (Evid. Code, §§ 994, 1014), and even if plaintiff's relationship with Corwin was not of a nature that would bring information revealed to Corwin within an evidentiary privilege, the relationship bore a close similarity to such a relationship. Misrepresentations of this nature by either a reporter or an academic investigator could undermine legitimate professional relationships and would be especially troublesome, because they would take advantage of the desire and willingness of relatives and friends to provide assistance to professionals who they believe will use any personal information that is revealed to help the subject of the inquiry."
We are pleased that the Supreme Court of California upheld the importance of respect for basic principles of lawful conduct and respect for privacy rights in the activities of journalists and other investigators.
The Leadership Council does not consider the Skeptical Inquirer article by Loftus and Guyer a significant addition to the literature on recovered memory as it was not published in a peer reviewed, scientific journal. Further more, as Loftus well knows it could not have been published in a scientific journal for the very reason upheld by the California Supreme Court---scientific guidelines regulate how private information may be obtained, and violating ethical protocols by obtaining information in fraudulent ways would not pass the standards of institutional review boards for ethical research. The Supreme Court recognized that even journalistic standards may have been violated by the alleged action. As detailed in our own brief, there are legitimate scientific ways to conduct studies that further the debate on recovered memory, but the Guyer Loftus article adds nothing to the scientific literature on this important topic.
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