Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘privacy’

Revealing someone’s criminal record = privacy invasion?

Eugene Volokh on the background of a case now pending in the Ninth Circuit:

Unfortunately, for several decades, California courts did indeed take the view that accurately discussing people’s crimes from a decade or more ago could lead to legal liability. Such speech, a discussion in a 1971 California Supreme Court said, serves no “public purpose” and is not “of legitimate public interest”; there is no “reason whatsoever” for it, when (in the court’s view) the plaintiff has been “rehabilitated” and has “paid his debt to society.”

In 2004, the state’s high court recognized that as regards the media and its reporting, this stance had become inconsistent with modern views of the First Amendment. Unfortunately, the court left open the possibility that non-media defendants might still face damage suits for privacy invasion over such disclosures, and exactly that possibility has now eventuated in a case by the name of Readylink Healthcare v. Lynch. (Mar. 15)

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Update: Dallas Observer doesn’t owe $1 billion

We reported on the story in September 2004:

“Joe Doe”, the HIV+ plaintiff in a Texas state lawsuit, is a member of the choral group “Positive Voices”—which has produced a CD with his photo and his real name. Nevertheless, when the alternative weekly Dallas Observer also identified “Doe” as HIV+ in passing in a larger December 4 story about a gay congregation titled “Fallen Angel,” “Doe” sued. The suit doesn’t allege that the Observer got its facts wrong, but argues that the story violates a Texas law prohibiting the disclosure of “medical test results,” with a fine of up to $10,000 for each disclosure. Since the Observer has circulation of 110,000, “Doe” figures he’s entitled to over a billion dollars.

Positive Voices is a group that advertises itself as consisting of HIV+ members. A Texas state court of appeals reversed the decision of the trial court not to grant summary judgment, and entered judgment for the defendants. (John Council, “Texas Appeals Court Sides With Newspaper in $1 Billion Suit Over HIV Disclosure”, Texas Lawyer, Feb. 13; New Times Inc., et al. v. John Doe., No. 05-05-00705-CV (Tex. App. Jan. 24, 2006)).

The decision was limited to the facts of the case, however, and the state statute remains overbroad, and could easily be construed by future courts to apply to the media. Or even personal-dating websites: a strict interpretation of the statute, HSC § 81.103, would create a cause of action for a plaintiff who posts “I have tested negative for HIV” on a website that screens essays against that website. And the statute is conceivably even broader, given its definition of “test result”:

“Test result” means any statement that indicates
that an identifiable individual has or has not been tested for AIDS
or HIV infection, antibodies to HIV, or infection with any other
probable causative agent of AIDS, including a statement or
assertion that the individual is positive, negative, at risk, or
has or does not have a certain level of antigen or antibody.

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Trauma reality-TV show

The reality TV show “Trauma: Life in the ER” was filmed at 35 hospitals in 23 states over a five-year period. Now lawyers are pursuing would-be class actions against the New York Times’ television subsidiary, Discovery Communications, and various hospitals claiming that the privacy consent given by patients and family members was defective or obtained under false pretenses. Despite protests from defendants that the issue of validity of consent is intrinsically one that requires case-by-case determination, a New Jersey judge has certified a class action for lawsuits within that state. The judge estimated that the number of potential class members nationwide might reach into the hundreds of thousands. (Charles Toutant, “Hospital Patients Filmed for Reality TV Certified as Plaintiff Class”, New Jersey Law Journal, Jun. 20). Florida Masochist notes (Jun. 24) that a plaintiff’s lawyer suing in Orlando, per the Sentinel coverage, “said the lawsuit doesn’t question the right to broadcast the material, but the filming and production process”. (Pedro Ruz Gutierrez, “Patients sue over TV appearances”, Orlando Sentinel, Jun. 24). That sounds puzzling: if the persons suing aren’t objecting to the broadcast of the material, how seriously were they injured by the alleged affront to their privacy?

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EU court: church website violated privacy law

In a widely awaited decision, the European Court of Justice has ruled that a Swedish woman can be fined about $500 for identifying and publishing personal details about fellow church volunteers on her personal web site in breach of “data protection” privacy laws. Bodil Lindqvist of Alseda parish had published online “some full names, telephone numbers and references to hobbies and jobs held by her colleagues. In relation to one lady, Lindqvist also revealed that the volunteer had injured her foot and was working part-time on medical grounds.” A Swedish court found that she had violated data-privacy law in posting the page and the European Court agreed. (“Identifying people on-line violates Data Protection laws, says European Court”, Out-Law (UK), Nov. 7). We originally reported on the case Sept. 20, 2000.

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