On August 25, 2011, the Massachusetts Appeals Court, in a case of first impression, ruled that the state crime lab’s retention of an individual’s DNA sample beyond the limitations promised to him by the police when they took the voluntary sample state a claim for invasion of privacy, and for violation of the state’s Fair Information Practices Act (“FIPA”). The case, Amato v. District Attorney, No. 10-P-354 (Mass. Ct. App. Aug. 25, 2011), is a significant win for privacy advocates and the Firm. Proskauer partner Mark Batten and former associate Sandra Badin handled the matter with assistance from the Firm’s pro bono partner, the ACLU.

The Florida Supreme Court recently held that a commercial general liability (“CGL”) insurance policy that provides coverage for an “advertising injury” covers a violation of the Telephone Consumer Protection Act (“TCPA”). The definition of “advertising injury” in the CGL policy at issue provided coverage for an “injury arising out of” the “[o]ral or written publication of material that violates a person’s right of privacy.” In finding that coverage existed, the court noted that the TCPA protects the privacy right to seclusion.

Several Google executives, including the Company’s global privacy counsel, Peter Fleischer, will face criminal charges in Italian court stemming from Italian authorities’ two-year investigation of a video posted on Google Video showing a disabled teen being taunted by classmates. The video, posted in 2006, depicts four high school boys in a Turin classroom taunting a classmate with Down syndrome and ultimately hitting the young man over the head with a box of tissues. Google removed the video on November 7, 2006, less than twenty-four hours after receiving multiple complaints about the video. Nonetheless, Fleischer and his Google colleagues face criminal charges of defamation and failure to exercise control over personal information that carry a maximum sentence of three (3) years.

California High Court Hears Argument Regarding Invasion of Privacy Claims

On Tuesday, December 5, the California Supreme Court heard argument in the case of Taus v. Loftus, S133805. Loftus is a psychologist and UC Irvine professor who allegedly misidentified herself for the purpose of obtaining information to dispute conclusions of a case study regarding repressed memory. Loftus allegedly used public records to find Jane Doe, now identified as naval aviator Nicole Taus, the subject of a study by psychiatrist David Corwin. As a child, Taus was the subject of a child custody battle in which her father, who prevailed, claimed his daughter had been abused by her mother. Corwin interviewed Taus first as a child during her parents’ divorce, and again more than a decade later. With Taus’ consent, Corwin wrote an article in 1997 that claimed that Taus had reported abuse as a child, blocked memories of the abuse, and spontaneously recovered those memories during their subsequent interview years later. Corwin’s article identified Taus as Jane Doe.

Loftus published a two-part report in 2002 casting doubt on Corwin’s conclusions, but did not identify Taus by name. In 2003, Taus revealed her own identity when she sued Loftus, her co-author Melvin Guyer, Carol Tavris (an author of another 2002 article regarding the case), the magazine where the Loftus article appeared the Skeptical Inquirer (published by the Committee for the Scientific Investigation of Claims of the Paranormal), the University of Washington (where Loftus was employed), and Shapiro Investigations (a company that allegedly performed investigation services for Loftus). Taus’ lawsuit included claims for infliction of emotional distress, invasion of privacy, intrusion, fraud, and defamation with respect to Taus’ mental health and fitness for military duty. Taus alleged, among other things, that Loftus had obtained an interview with Taus’ former foster mother by misrepresenting that she was Corwin’s supervisor. Loftus denies that she ever made any such misrepresentation.

The case arrived at the Supreme Court on appeal from the First District Court of Appeal’s unpublished ruling in April 2005 that Taus was sufficiently likely to prove invasion of privacy against all appellants except Tavris, and defamation as alleged against Loftus, to survive an anti-SLAPP motion. Taus v. Loftus, A104689. During Tuesday’s argument, several of the Justices expressed concern regarding Loftus’ alleged misrepresentations to obtain the interview with the foster mother. Loftus argued that Taus had no expectation of privacy because she had provided consent to Corwin to publish her account and to show videotapes of the session at issue.

The case has potential implications for journalists, among others, who argue that a ruling in favor of Taus could result in lawsuits by news sources who contend, after the fact, that reporters obtained information by misrepresentation.