Massachusetts appellate courts have rendered two wrongful death opinions in the last two days, both favoring plaintiffs.
In Dubuque v. Cumberland Farms, Inc. (AC 17-P-266) (June 6, 2018), the Court of Appeals upheld a $20m judgment against the convenience store after inadequate "bollard" protection of a pedestrian who was killed when struck by an out-of-control car. The opinion includes an interesting discussion on evidence regarding the admissibility of past pedestrian-car collisions arguably similar or distinguishable.
Today in Correa v. Schoeck (SJC 12409), the Supreme Judicial Court reinstated Walgreens pharmacy as a defendant in the tragic death of a 19-year-old who was unable to fill a prescription for life-saving medication. The prescription was hung up on paperwork somewhere among pharmacy, doctor's office, and insurer. The court held the pharmacy bound to at least a thin reed of duty in the negligence claim.
Thursday, June 7, 2018
Tuesday, June 5, 2018
'FERPA Close-Up: When Video Captures Violence and Injury'
With Kitty Cone, Esq., I've published FERPA Close-Up: When Video Captures Violence and Injury, 70:4 Okla. L. Rev. 839 (2018), available to download from SSRN and elsewhere. We are grateful to the staff of the Oklahoma Law Review, who were meticulous and a pleasure to work with. Here is the abstract.
Federal privacy law is all too often misconstrued or perverted to preclude the disclosure of video recordings that capture students victimized by violent crime or tortious injury. This misuse of federal law impedes transparency and accountability and, in many cases, even jeopardizes the health, safety, and lives of children. When properly construed, however, federal law is no bar to disclosure and, at least in public schools, works in tandem with freedom of information laws to ensure disclosure. This Article posits that without unequivocal guidance from federal administrative authorities, uncertainty regarding the disclosure of such recordings will continue to linger, jeopardizing the ability of plaintiffs to access needed information.
Monday, May 7, 2018
Mass. supreme court: MIT owed no duty in suicide case
Today the high court of Massachusetts held no duty, as a matter of law, in a wrongful death case of attenuated duty and causation in which the
plaintiff sought to hold the Massachusetts Institute of Technology liable in negligence for a struggling
student's suicide. The court
left the door open for proof of a special relationship on different
facts.
Tort watchers and university counsel near and far have been awaiting the decision in Nguyen v. Massachusetts Institute of Technology, No. SJC-12329 (May 7, 2018). The November 7 oral argument in the case is online here.
A university-student relationship is not completely outside the custodial scope that gives rise to a duty in tort law in K12, the court held; nor is it completely the same. Rather, the court "must ... take into account a complex mix of competing considerations. Students are adults but often young and vulnerable; their right to privacy and their desire for independence may conflict with their immaturity and need for protection."
With regard to a suicide risk, reasonable foreseeability is key to the special relationship/duty analysis. Relevant factors include whether student reliance on the university impeded others who might have rendered aid, as might occur in a student-residential environment; and, from research by emerita Washington & Lee University Law School professor Ann MacLean Massie, the court quoting,
In the instant case, "Nguyen never communicated by words or actions to any MIT employee that he had stated plans or intentions to commit suicide, and any prior suicide attempts occurred well over a year before matriculation." He also strove to partition his mental health treatment from his academic life.
The court upheld summary judgment for the defendant on the tort claims as a matter of law.
Tort watchers and university counsel near and far have been awaiting the decision in Nguyen v. Massachusetts Institute of Technology, No. SJC-12329 (May 7, 2018). The November 7 oral argument in the case is online here.
A university-student relationship is not completely outside the custodial scope that gives rise to a duty in tort law in K12, the court held; nor is it completely the same. Rather, the court "must ... take into account a complex mix of competing considerations. Students are adults but often young and vulnerable; their right to privacy and their desire for independence may conflict with their immaturity and need for protection."
With regard to a suicide risk, reasonable foreseeability is key to the special relationship/duty analysis. Relevant factors include whether student reliance on the university impeded others who might have rendered aid, as might occur in a student-residential environment; and, from research by emerita Washington & Lee University Law School professor Ann MacLean Massie, the court quoting,
"degree of certainty of harm to the plaintiff; burden upon the defendant to take reasonable steps to prevent the injury; some kind of mutual dependence of plaintiff and defendant upon each other, frequently . . . involving financial benefit to the defendant arising from the relationship; moral blameworthiness of defendant's conduct in failing to act; and social policy considerations involved in placing the economic burden of the loss on the defendant."In discussing the flexibility of this analysis, Judge Learned Hand's famous BPL test made an appearance (a test customarily directed to breach rather than duty), off-setting the gravity of a suicide by probability, and balancing the result against the burden on the university of employing effective preventive measures. The court also emphasized the dispositive nature of actual knowledge: "Where a university has actual knowledge of a student's suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student's stated plans or intentions to commit suicide, the university has a duty to take reasonable measures under the circumstances to protect the student from self-harm."
In the instant case, "Nguyen never communicated by words or actions to any MIT employee that he had stated plans or intentions to commit suicide, and any prior suicide attempts occurred well over a year before matriculation." He also strove to partition his mental health treatment from his academic life.
The court upheld summary judgment for the defendant on the tort claims as a matter of law.
Labels:
affirmative duty,
causation,
duty,
higher education,
law and economics,
Learned Hand,
Massachusetts,
MIT,
negligence,
suicide,
Supreme Judicial Court,
wrongful death
Tuesday, May 1, 2018
Why do law profs lose their employment suits? Because most plaintiffs lose
An article about litigious law profs in the Albany Law Review by Nova Southeastern Law Professor Robert Jarvis is getting a lot of play in legal academic circles. Jarvis did an astonishingly thorough and first-of-its-kind survey of cases in which law professors are plaintiffs suing over employment matters. Here's how the ABA Journal (May 2018, at 15) summarized it:
Jarvis himself observed, "law professors generally do a poor job assessing their chances, for they lose much more often than they win." That's just wrong--a non sequitur. Any plaintiff in a civil action could be said to have assessed the situation poorly, simply because defendants usually win civil actions. Yet plaintiffs keep suing. So there must be other reasons to sue. One reason to sue is that a plaintiff might hope to win a settlement, because a defendant wishes to avoid a public row or litigation transaction costs. Another reason to sue is that a plaintiff has nothing to lose. A lawsuit in a hopeless situation might yet stake out a public defense of integrity and leave a record to protect future employment prospects.
Importantly, whether a plaintiff wins in litigation or seeks to accomplish these ancillary aims says nothing definitive as to whether plaintiff was actually wronged. Plenty of plaintiffs are wronged and lose. Evidence controlled by defendants often cannot be marshaled sufficiently to make the plaintiff's case to the requisite standard. Courts broadly defer to universities in the construction of tenure contracts, even though the universities draft them and they're not negotiable. And all kinds of legal standards, such as sovereign immunity, and sometimes tort reforms, such as anti-SLAPP laws, protect defendants prophylactically.
So why do law professors lose their cases? Because all plaintiffs usually lose, for all sorts of reasons, some legitimate, some not. In academics, universities dominate the employment bargain in a supply-rich market, so law professors, like anyone else, start from a disadvantage. And law professors might be expected to turn up as plaintiffs more often than the average employee because the law professor correctly calculates that she or he has a better-than-average chance of beating the odds.
Full disclosure, my own once upon a case is mentioned, fairly and correctly, in a footnote in Jarvis's article, on the subject of reputational injury. When I sued, I was most definitely accused of being thin-skinned--by people who had no idea what it was like to see one's career and livelihood pouring down the drain, and family suffering by association, upon defamatory falsehoods that spread like wildfire. I could have not sued. One colleague advised me to just wait five years and let the false allegations fade from memory. Even if they would have faded, a dubious proposition, waiting would have meant career stasis for at least five years, maybe forever.
And had I not sued, despite the odds, and had the lawsuit as leverage, I never would have received the public letter of exoneration that I did. My current employer asked to see that letter before I started a new job. I don't know whether I count as a loss in Jarvis's statistics. My lawsuit didn't win any money, and I dismissed it with prejudice. But I don't think I lost.
Anyway, why law profs lose their cases is not what worries me the most about Jarvis's findings. I'm far more concerned about his observation that lawsuits in legal academics are on the uptick. This I believe to be the result of worsening employment conditions and the frustration of law faculty--me included--whom, in the troubled legal education market, universities increasingly expect to be vocational trainers and obedient serfs, rather than erudite educators and champions of intellectual freedom. In examining the unusual incidence of law professor-employee plaintiffs, Jarvis is seeing just the tip of a nasty iceberg.
Law professors often lose when they sue over employment matters such as not getting hired, tenure denials or pay disputes, according to an article by Robert Jarvis in the latest issue of the Albany Law Review. Jarvis, a professor at Nova Southeastern University’s Shepard Broad College of Law, wrote that three issues are at the root of these lawsuits: dissatisfaction with, and professional jealousy of, faculty colleagues; disagreements with, and distrust of, administrators; and feeling that others are receiving better, and undeserved, treatment. In what appears to be the first study of its kind, Jarvis also found that law professor suits are far more common in recent years.Jarvis's work is quality, but commenters have read too much into his observations. Eager to dine on the raw flesh of irony, stories such as Above the Law's have ripped lines from Jarvis, such as "many law professors are guilty of a shocking level of thin-skinnedness," to over-explain law profs' poor record in litigation. First, Jarvis offered that as an observation, not an explanation. Second, "many" does not mean even "most." It's surely true of "many," but that hardly explains the litigation record.
Jarvis himself observed, "law professors generally do a poor job assessing their chances, for they lose much more often than they win." That's just wrong--a non sequitur. Any plaintiff in a civil action could be said to have assessed the situation poorly, simply because defendants usually win civil actions. Yet plaintiffs keep suing. So there must be other reasons to sue. One reason to sue is that a plaintiff might hope to win a settlement, because a defendant wishes to avoid a public row or litigation transaction costs. Another reason to sue is that a plaintiff has nothing to lose. A lawsuit in a hopeless situation might yet stake out a public defense of integrity and leave a record to protect future employment prospects.
Importantly, whether a plaintiff wins in litigation or seeks to accomplish these ancillary aims says nothing definitive as to whether plaintiff was actually wronged. Plenty of plaintiffs are wronged and lose. Evidence controlled by defendants often cannot be marshaled sufficiently to make the plaintiff's case to the requisite standard. Courts broadly defer to universities in the construction of tenure contracts, even though the universities draft them and they're not negotiable. And all kinds of legal standards, such as sovereign immunity, and sometimes tort reforms, such as anti-SLAPP laws, protect defendants prophylactically.
So why do law professors lose their cases? Because all plaintiffs usually lose, for all sorts of reasons, some legitimate, some not. In academics, universities dominate the employment bargain in a supply-rich market, so law professors, like anyone else, start from a disadvantage. And law professors might be expected to turn up as plaintiffs more often than the average employee because the law professor correctly calculates that she or he has a better-than-average chance of beating the odds.
Full disclosure, my own once upon a case is mentioned, fairly and correctly, in a footnote in Jarvis's article, on the subject of reputational injury. When I sued, I was most definitely accused of being thin-skinned--by people who had no idea what it was like to see one's career and livelihood pouring down the drain, and family suffering by association, upon defamatory falsehoods that spread like wildfire. I could have not sued. One colleague advised me to just wait five years and let the false allegations fade from memory. Even if they would have faded, a dubious proposition, waiting would have meant career stasis for at least five years, maybe forever.
And had I not sued, despite the odds, and had the lawsuit as leverage, I never would have received the public letter of exoneration that I did. My current employer asked to see that letter before I started a new job. I don't know whether I count as a loss in Jarvis's statistics. My lawsuit didn't win any money, and I dismissed it with prejudice. But I don't think I lost.
Anyway, why law profs lose their cases is not what worries me the most about Jarvis's findings. I'm far more concerned about his observation that lawsuits in legal academics are on the uptick. This I believe to be the result of worsening employment conditions and the frustration of law faculty--me included--whom, in the troubled legal education market, universities increasingly expect to be vocational trainers and obedient serfs, rather than erudite educators and champions of intellectual freedom. In examining the unusual incidence of law professor-employee plaintiffs, Jarvis is seeing just the tip of a nasty iceberg.
Tuesday, April 24, 2018
Revenge porn law can survive First Amendment scrutiny by requiring 'actual malice'
Last week a Tyler, Texas, appellate court struck the state’s
criminal revenge porn law as fatally overbroad, so facially unconstitutional,
under the First Amendment to the federal Constitution. The ruling garnered headlines heralding the
unconstitutionality of revenge porn law, which could have big implications in privacy
law and policy nationwide—even ramifications
for U.S. foreign relations.
However, the
court’s ruling was not so broad as headlines have suggested. In fact, the court gave wise and constructive
feedback on what a revenge porn law needs to look like to pass constitutional
muster—which it can. It seems in the end
that the Texas law was just not well drafted.
Accordingly, the revenge porn laws that have proliferated in the United
States, now in 38 states (collected at Cyber Civil Rights
Initiative), should be scrutinized and, if necessary, corrected. (Constitutional problems with Vermont and Arizona
laws were mentioned just today by the U.K. Register,
here.)
The Texas case, Ex
parte Jones,
No. 12-17-00346 (Tex. Ct. App. Apr. 18, 2018), involved a criminal
information against Jones under Texas Penal
Code section 21.16(b), which criminalizes the “unlawful disclosure of
intimate visual materials.” The statute
reads:
A person commits an offense if:(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;(3) the disclosure of the visual material causes harm to the depicted person; and(4) the disclosure of the visual material reveals the identity of the depicted person in any manner[.]
The statute, section
21.16(a), furthermore defines “visual material” broadly (“any film,
photograph, videotape, negative, or slide or any photographic reproduction that
contains or incorporates in any manner any film, photograph, videotape,
negative, or slide,” as well as electronic transmission) and “intimate parts”
specifically (““the naked genitals, pubic area, anus, buttocks, or female
nipple of a person”).
The court’s First Amendment analysis was sound. The court applied de novo review to test the constitutionality of a criminal
statute. The court rejected a narrow
construction that would confine the law to mere obscenity, as stringently
defined by federal precedent. Because
the statute is then a content-based restriction of expressive content, the
court charged the government with the burden of rebutting presumptive
unconstitutionality. The State conceded at
oral argument that the law must survive strict scrutiny, i.e., advance a compelling
state interest and be narrowly tailored to do so. Intimate privacy passes muster on the first
prong, but the statute facially fails narrow tailoring. The court acknowledged that overbreadth
doctrine is “strong medicine”; nevertheless, the statute could not measure up.
The court illustrated the statute’s fatal flaw with a
hypothetical, unattributed so presumably original, that seems drawn from a law school or bar exam:
“Adam and Barbara are in a committed relationship. One evening, in their home, during a moment of passion, Adam asks Barbara if he can take a nude photograph of her. Barbara consents, but before Adam takes the picture, she tells him that he must not show the photograph to anyone else. Adam promises that he will never show the picture to another living soul, and takes a photograph of Barbara in front of a plain, white background with her breasts exposed.“A few months pass, and Adam and Barbara break up after Adam discovers that Barbara has had an affair. A few weeks later, Adam rediscovers the topless photo he took of Barbara. Feeling angry and betrayed, Adam emails the photo without comment to several of his friends, including Charlie. Charlie never had met Barbara and, therefore, does not recognize her. But he likes the photograph and forwards the email without comment to some of his friends, one of whom, unbeknownst to Charlie, is Barbara’s coworker, Donna. Donna recognizes Barbara and shows the picture to Barbara’s supervisor, who terminates Barbara’s employment.”
“In this scenario,” the court observed, “Adam can be charged
under Section 21.16(b), but so can Charlie and Donna.”
Therein lies the problem: not necessarily as applied to
Adam, but as applied to Charlie and Donna, who are ignorant of the
circumstances under which the photo came to be.
Certainly Charlie, who received the photo from Adam “without comment,”
might as well believe that Adam ripped the photo of a stranger from a
pornographic website. However indecent
the photo, both Charlie and Donna have a First Amendment right to communicate
the photo “downstream.” Yet without
Barbara’s consent, Charlie and Donna run afoul of the revenge porn law. Given the ease with which persons can share
visual images in the age of electronic and online communication, the court
found “alarming breadth” in this potential criminalization of expression. In First Amendment overbreadth doctrine, a facially
overbroad criminal law must be ruled unconstitutional even if it might be
constitutional as applied to the defendant before the court.
The court distilled the law’s flaws in two dimensions
related to culpability. Typically of a
criminal prohibition, the statute requires intent. But intent pertains only to the republication
of the image. The statute does not
require that the actor have “knowledge or reason to know the circumstances surrounding
the material’s creation, under which the depicted person’s reasonable
expectation of privacy arose.” Second, the
statute does not require “intent to harm the depicted person,” or even
knowledge “of the depicted person’s identity.”
Borrowing the language of civil law (meaning common law tort), one would
say that the statute requires volitional intent, but not intent to commit a wrong
or to cause an injury.
The requisite intent to survive constitutional challenge may
be likened to “actual malice,” which is used in both civil and criminal
defamation law to describe “knowledge of falsity or reckless disregard of truth
or falsity.” In the context of revenge
porn, a constitutional law might require “actual knowledge of the depicted
person’s reasonable and continuing expectation of privacy in the image, or
reckless disregard of same.” If Charlie
knew the identity of Barbara, so might infer the circumstances
under which the photo had been taken, then the State might at least allege
recklessness. Donna, who did know
Barbara’s identity, might be charged.
But she should be entitled to defend upon a qualified privilege,
borrowed again from common law defamation, to share information in the interest
of a recipient or third party when the defendant should disclose according to
general standards of decency. A
corrected statute would hold Adam accountable without a constitutional problem.
Also just last week, the Rhode Island legislature (my home
state) passed a revenge porn bill (2018-H
7452A) that has the support of the Governor Gina Raimondo (AP). Raimondo vetoed a revenge porn bill in 2016, objecting
on free speech grounds (Providence
Journal). Her position now is
bolstered by the Texas decision in Jones. Beefing up the intent requirement is precisely
one of the R.I. legislative fixes that brought the latest bill to
fruition. The Rhode Island bill requires
that the defendant intentionally disseminated, published, or sold “[w]ith
knowledge or with reckless disregard for the likelihood that the depicted
person will suffer harm, or with the intent to harass, intimidate, threaten or
coerce the depicted person.”
I still have qualms about extending the “reasonable
expectation of privacy” (REP) standard—which is drawn from Fourth Amendment
jurisprudence as a bulwark against improper state
action—being extended into the realm of private criminal or civil
liability. REP is potentially much
broader than the intimate-depiction definitions of revenge porn laws. And criminalization and civil liability are not the same. Even though criminal defamation is constitutional when qualified by actual malice, contemporary human rights norms discourage the criminalization of expression at all.
At the same time, I have argued in favor of evolving U.S.
law to recognize downstream control of private information, in consonance with both
American values in the information age and emerging global legal norms. Revenge porn laws—as against Adam, to the
exclusion of Charlie and Donna—are a modest step in that direction, which European observers will welcome of
us. We will have to remain vigilant to continue
to protect freedom of expression in tandem with expanding privacy rights,
especially in a time in which the latter at the expense of the former is the
fashion. Conscientious actors such as the Jones panel (Worthen, C.J., and Hoyle and Neeley, JJ.) and Governor Raimondo are
doing well, so far.
Friday, April 13, 2018
Mass. high court supports AG in climate change investigation of Exxon Mobil
I'm not a civ pro cognoscente, but a ruling of the Massachusetts high court on long-arm jurisdiction today caught my attention because it relates to the effort to hold Big Oil accountable for climate change. The case is Exxon Mobil Corp. v. Attorney General, No. SJC-12376 (Mass. Apr. 13, 2018).
Since 2016, Massachusetts Attorney General Maura Healey has been investigating Exxon Mobil Corp. under the state consumer protection law--the same Mass. Gen. L. chapter 93A that powerfully enhances conventional civil actions in tort in the commonwealth. The AG tracks the investigation blow by blow online. The AG opened the investigation after the 2015 revelation that Exxon might have known about the risk of climate change as early as the 1970s, as reported by Scientific American.
As part of the investigation, "the Attorney General issued a civil investigative demand (C.I.D.) to Exxon, seeking documents and information relating to Exxon's knowledge of and activities related to climate change." Exxon resisted the CID on personal jurisdiction grounds. Exxon simultaneously sought declaratory relief in federal court in Texas (No. 4:16-CV-469). A year ago the case was transferred to New York (No. 1:17-cv-02301), and two weeks ago, Healy prevailed (S.D.N.Y. Mar. 29, 2018). Exxon is incorporated in New Jersey and headquartered in Texas.
The analysis for specific personal jurisdiction in an investigation is not the same as in a lawsuit, the court explained. Exxon denied "suit-related" activity in Massachusetts. But "the investigatory context requires that we broaden our analysis," the court wrote, to consider the scope of investigation regardless of whether any wrongdoing has yet been uncovered.
"The Attorney General's investigation concerns climate change caused by manmade greenhouse gas emissions--a distinctly modern threat that grows more serious with time, and the effects of which are already being felt in Massachusetts." More than 300 Exxon and Mobil franchises operate in Massachusetts. Considering the corporation's close supervision of franchisees, the fuel stations "represent[] Exxon's 'purposeful and successful solicitation of business from residents of the Commonwealth.'" The franchise agreements moreover require Exxon sign-off of advertising, so the court rejected Exxon's efforts to distance the corporation from consumer sales.
The Exxon investigation in Massachusetts unfolds against a backdrop of burgeoning legal attacks across the country. The much-watched Juliana v. United States (Children's Trust) persists in the District of Oregon upon a favorable ruling in the Ninth Circuit in March (884 F.3d 830). If state attorneys general make any headway under consumer protection law, I hope that any settlement serves more clearly to remedy climate change than the tobacco master settlement agreement has served to combat smoking-related health effects (see, e.g., Jones & Silvestri, 2010).
![]() |
Mass. A.G. Maura Healey (Edahlpr CC BY-SA 4.0) |
As part of the investigation, "the Attorney General issued a civil investigative demand (C.I.D.) to Exxon, seeking documents and information relating to Exxon's knowledge of and activities related to climate change." Exxon resisted the CID on personal jurisdiction grounds. Exxon simultaneously sought declaratory relief in federal court in Texas (No. 4:16-CV-469). A year ago the case was transferred to New York (No. 1:17-cv-02301), and two weeks ago, Healy prevailed (S.D.N.Y. Mar. 29, 2018). Exxon is incorporated in New Jersey and headquartered in Texas.
The analysis for specific personal jurisdiction in an investigation is not the same as in a lawsuit, the court explained. Exxon denied "suit-related" activity in Massachusetts. But "the investigatory context requires that we broaden our analysis," the court wrote, to consider the scope of investigation regardless of whether any wrongdoing has yet been uncovered.
![]() |
Exxon franchise in Durham, N.C. (Ildar Sagdejev CC BY-SA 4.0) |
The Exxon investigation in Massachusetts unfolds against a backdrop of burgeoning legal attacks across the country. The much-watched Juliana v. United States (Children's Trust) persists in the District of Oregon upon a favorable ruling in the Ninth Circuit in March (884 F.3d 830). If state attorneys general make any headway under consumer protection law, I hope that any settlement serves more clearly to remedy climate change than the tobacco master settlement agreement has served to combat smoking-related health effects (see, e.g., Jones & Silvestri, 2010).
In re United States, 884 F.3d 830 (9th Cir. 2018)
884 F.3d 830
In re United States, 884 F.3d 830 (9th Cir. 2018)
Saturday, April 7, 2018
Popular singer's 'right to be forgotten' outweighs free speech in Italian case over archival video and biting commentary
Because Manchester City FC might need it after today's derby match, let's consider the right to be forgotten.
As an aspect of European, and increasingly global, data protection law, "the right to be forgotten," or right to erasure, unsettles the tummies of American media advocates. The right to erasure runs up against the presumptive rule of U.S. First Amendment law that there can be no punishment for the republication of truthful information lawfully obtained. Read more about that here (predating implementation of the EU General Data Protection Regulation). The Italian Court of Cassation has issued a potentially important decision at the intersection of the right to erasure and the freedom of expression.
Hat tip @TheItalianLawJournal. For a few months to come, or until a better translation comes to light, I'm parking a very rough Google Translate rendition of the ruling here in PDF. The translations that follow here are mine, refining the Google Translate rendering. The original court decision can be found here.
The case stemmed from a TMZ-style confrontation by an RAI-1 "Live Life" («La vita in diretta») crew of Italian singer Antonello Venditti (Facebook) in 2000. I've not seen the video, but Venditti apparently resisted the interrogators with sufficient gruffness that he earned his way onto the program's 2005 "ranking of the most
obnoxious and grumpy characters in the entertainment world." The story occasioned rebroadcast of the 2000 segment, along with commentary mocking his diminished fame in the intervening years. Antonello took offense and sued, claiming "a right to be forgotten" attached to the 2000 video.
Of peculiar resonance with current events in the United States, the Italian court took note of a German right-to-erasure case about "an affair in which a German citizen, who held a major political and business position in Germany, had requested the erasure of information from the web relating to an episode of collusion with Russian crime dating back several years earlier, republished several years after." The Court of Justice of the EU ruled that "the public's interest in information prevailed over the individual's interest in oblivion." However, the Italian court observed, the ruling resulted from a fact-intensive inquiry.
The court must engage with "the search for the right balance between the interest of Internet users in information and the fundamental rights of the person," the Italian court explained. "Therefore, the editor of a newspaper that stores in its historical archive on the internet the news, making it available to a potentially unlimited number of people, is required to prevent, through the dissemination of even remote facts, without any meaningful and current public interest, possible harm to the right to be forgotten by the people who were involved."
The freedom of expression must yield to the right to erasure, the court held, upon analysis according to five factors:
The court also rejected "satire" as a defense. The representation of Antonello was not "paradoxical, surreal and hyperbolic critique," but referred to "true fact," "clearly directed to a mere and unjustified denigration of the artist." The broadcaster sought to use the 2000 video to represent Antonello in 2005 as "a singer, for years, in decline."
This case is the very stuff of American media advocates' nightmares. Newspapers decry the right to erasure as a threat to online archives—though representations in archives, as archives, are readily factually distinguishable from the Antonello case. The more realistic threat would be to the "TMZ"/"Talk Soup" format of entertainment media, or even the clever uses of archival video that have become the staple of commentary on The Daily Show with Trevor Noah and Last Week with John Oliver. Certainly under a rule such as the Italian court employed, broadcasters, even straight news broadcasters, would have to take more care with their use of B roll.
I've advocated in favor of evolving U.S. privacy law toward European data protection norms. But the Italian court went too far here, lending credence to American nay-saying. I fault the court's analysis of Antonello as, in U.S. terms, a "private figure." The lower court got it right in finding Antonello's public status dispositive relative to this RAI commentary. It's especially telling and troubling that as to the satire argument—the RAI program seems on the mild side of the Talk Soup genre—the court faulted RAI commenters for the truth in their observation of Antonello's waning fame. The court set up the Italian judiciary to be a "super editor" of popular media, an arbiter of taste. American courts appropriately struggle with newsworthiness determinations in privacy law because they do not want that job.
As an aspect of European, and increasingly global, data protection law, "the right to be forgotten," or right to erasure, unsettles the tummies of American media advocates. The right to erasure runs up against the presumptive rule of U.S. First Amendment law that there can be no punishment for the republication of truthful information lawfully obtained. Read more about that here (predating implementation of the EU General Data Protection Regulation). The Italian Court of Cassation has issued a potentially important decision at the intersection of the right to erasure and the freedom of expression.
Hat tip @TheItalianLawJournal. For a few months to come, or until a better translation comes to light, I'm parking a very rough Google Translate rendition of the ruling here in PDF. The translations that follow here are mine, refining the Google Translate rendering. The original court decision can be found here.
![]() |
Antonello Venditti by Angela_Anji (CC BY-NC-SA 2.0) |
Of peculiar resonance with current events in the United States, the Italian court took note of a German right-to-erasure case about "an affair in which a German citizen, who held a major political and business position in Germany, had requested the erasure of information from the web relating to an episode of collusion with Russian crime dating back several years earlier, republished several years after." The Court of Justice of the EU ruled that "the public's interest in information prevailed over the individual's interest in oblivion." However, the Italian court observed, the ruling resulted from a fact-intensive inquiry.
The court must engage with "the search for the right balance between the interest of Internet users in information and the fundamental rights of the person," the Italian court explained. "Therefore, the editor of a newspaper that stores in its historical archive on the internet the news, making it available to a potentially unlimited number of people, is required to prevent, through the dissemination of even remote facts, without any meaningful and current public interest, possible harm to the right to be forgotten by the people who were involved."
The freedom of expression must yield to the right to erasure, the court held, upon analysis according to five factors:
- the contribution made by the dissemination of the image or of the news to a matter of public interest;
- the actual and current interest in the dissemination of the image or news (for reasons of justice, police, or protection of the rights and liberties of others, or for scientific, educational, or cultural purposes), to be considered absent in case of prevalence of a popular interest [italics added; in original, divulgativo: I'm not sure how to translate that and don't think "popular" or "informed" is right], or, worse, merely economic or commercial interest of the subject that spreads the news or the image;
- the high degree of notoriety of the subject represented, for the economic or political reality of the country;
- the methods used, for the particular position held in public life, and, in particular, to obtain and give information, which must be truthful (because it is drawn from reliable sources, and with a diligent research work), disseminated in ways that are not excessive for information purposes, in the interest of the public, and free from insinuations or personal considerations, so as to highlight an exclusive objective interest in the new dissemination;
- the preventive information about the publication or transmission of the news or image at a distance of time, in order to allow the interested party the right of reply before its disclosure to the general public.
The court also rejected "satire" as a defense. The representation of Antonello was not "paradoxical, surreal and hyperbolic critique," but referred to "true fact," "clearly directed to a mere and unjustified denigration of the artist." The broadcaster sought to use the 2000 video to represent Antonello in 2005 as "a singer, for years, in decline."
This case is the very stuff of American media advocates' nightmares. Newspapers decry the right to erasure as a threat to online archives—though representations in archives, as archives, are readily factually distinguishable from the Antonello case. The more realistic threat would be to the "TMZ"/"Talk Soup" format of entertainment media, or even the clever uses of archival video that have become the staple of commentary on The Daily Show with Trevor Noah and Last Week with John Oliver. Certainly under a rule such as the Italian court employed, broadcasters, even straight news broadcasters, would have to take more care with their use of B roll.
I've advocated in favor of evolving U.S. privacy law toward European data protection norms. But the Italian court went too far here, lending credence to American nay-saying. I fault the court's analysis of Antonello as, in U.S. terms, a "private figure." The lower court got it right in finding Antonello's public status dispositive relative to this RAI commentary. It's especially telling and troubling that as to the satire argument—the RAI program seems on the mild side of the Talk Soup genre—the court faulted RAI commenters for the truth in their observation of Antonello's waning fame. The court set up the Italian judiciary to be a "super editor" of popular media, an arbiter of taste. American courts appropriately struggle with newsworthiness determinations in privacy law because they do not want that job.
Labels:
Antonello Venditti,
archives,
broadcasting,
data protection,
defamation,
erasure,
EU,
Europe,
free expression,
Italy,
news,
privacy,
public figure,
right to be forgotten,
satire
Thursday, April 5, 2018
SCOTUS 'Microsoft' privacy case likely moot, R+C blog reports
It looks like we won't get an answer from the U.S. Supreme Court in the Microsoft privacy case. For the Data + Privacy Security Insider at Robinson + Cole, Kathleen Porter and Connor Duffy report that the Government and Microsoft agree that the case was mooted by the CLOUD Act, signed into law in March as part of omnibus spending legislation.
The CLOUD Act gives the Government the authority to compel Microsoft to produce the sought-after data, whether stored at home or abroad, and the Government already has attained a warrant under the new law. Microsoft's reported statement indicates that the company's position was exonerated insofar as it maintained that the legislature was the appropriate branch of government in which to resolve the matter.
I wrote about Microsoft and the pending Carpenter case for the winter 2017 newsletter of the Privacy, Cybersecurity & Digital Rights Committee of the ABA Section of International Law (published just last month, March 2018).
The CLOUD Act gives the Government the authority to compel Microsoft to produce the sought-after data, whether stored at home or abroad, and the Government already has attained a warrant under the new law. Microsoft's reported statement indicates that the company's position was exonerated insofar as it maintained that the legislature was the appropriate branch of government in which to resolve the matter.
I wrote about Microsoft and the pending Carpenter case for the winter 2017 newsletter of the Privacy, Cybersecurity & Digital Rights Committee of the ABA Section of International Law (published just last month, March 2018).
Thursday, March 29, 2018
A la alien tort, German court engages business, human rights case of Pakistan fast fashion tragedy
In 2012, fire ravaged a textile factory in western Karachi, killing 260 and injuring 32. The fire occurred only hours after a shoe factory fire in Lahore killed scores, and two months before the Dhaka fire in Bangladesh killed more than 100 and injured 200. The Karachi fire is now the subject of civil litigation in Germany, taking advantage of a federal law that does what human rights advocates would like to see happen—but probably won't—under the U.S. alien tort statute, 28 U.S.C. § 1350.
These recurring factory tragedies have short half-lives in western media, owing to time-honored if callously objective journalistic measures of relevance (e.g., Jacoba Urist in The Atlantic). But the connection between these deaths and our daily lives in the west runs much deeper. These deaths represent just one adverse consequence of fast fashion, the global commercial trend that gives us retail clothing at an affordable cost that dramatically undervalues human and environmental externalities. My friend and colleague Nick Anguelov (Twitter) speaks powerfully on this subject and wrote about it in his 2015 book, The Dirty Side of the Garment Industry (CRC Press, Amazon) (see also Nick at UIA, on this blog).
Claudia Müller-Hoff and Carolijn Terwindt, advocates with the European Center for Constitutional and Human Rights, recently highlighted the German case for the Oxford Human Rights Hub and Law of Nations blogs. As they explain, a decision is now anticipated on claims in Dortmund by four plaintiffs against KiK, a clothing retailer that was the principal customer of the Karachi factory. Forensic architects in the U.K., Goldsmiths at the University of London, produced an unsettling and damning video that aided the plaintiff's case, published online two months ago.
A meaningful "win" for plaintiffs came once already in the court's preliminary ruling to admit the case under a German federal law, adopted in December 2016, the "National Action Plan on Business and Human Rights." The law represented implementation in the EU of the U.N. Guiding Principles on Business and Human Rights, which are, in turn, an instrument of the corporate social responsibility movement and under the umbrella of the U.N. Sustainable Development Goals.
The German law, as reported by Müller-Hoff and Terwindt, states: “Anyone who considers that his or her rights have been infringed in Germany by the actions of an enterprise can make claims before the civil courts.” The law is heralded as an important advancement for human rights protection in the vein of universal jurisdiction, though it reasonably does require a jurisdictional connection to Germany.
The KiK case has a parallel in the U.S. alien tort case currently pending in the U.S. Supreme Court, Jesner v. Arab Bank (SCOTUSblog). Jesner was heard in oral argument in October; see this excellent analysis by Amy Howe. The dispute in Jesner focuses principally on whether the alien tort statute applies to corporations. Meant to give U.S. courts jurisdiction over violations of international law, probably to protect commerce, the statute dates to the Judiciary Act of 1789, when corporations and international law were both very different from what they are today.
The U.S. Supreme Court has evidenced reluctance to construe the statute as broadly as its text might suggest in contemporary terms. Previous case law established that the statute cannot reach a "foreign cubed" case—foreign plaintiff, foreign defendant, and foreign soil—but myriad questions remain. Since the 1980s, human rights advocates have championed the alien tort statute as an appropriate mechanism to protect human rights abroad. The WNYC podcast More Perfect did an outstanding episode in October on the history of the statute: Enemy of Mankind. (Amy Howe also wrote a good summary here.) For the skeptical view of Jesner's and the statute's viability in this vein, see an excellent op-ed by Professor Samuel Estreicher in the New York Law Journal in January.
There has been some speculation that the Court might duck the corporate liability question in Jesner by ruling instead that the case is foreign cubed. And there lies the interesting parallel to KiK. The plaintiffs in Jesner seek to hold Amman-based Arab Bank liable for financing terrorism in Israel and Palestine. To satisfy the "touch and concern"-the-United-States jurisdictional test, plaintiffs-petitioners rest their case on a rather thin reed: that a U.S. office of the bank had a hand in laundering funds for Hamas. In Germany, the only link to German jurisdiction is KiK's role as principal buyer from the Pakistani factory. It's hard to imagine such a connection supporting liability in conventional tort analysis in American law; think of Apple's more-moral-than-legal responsibility for working conditions at Chinese Foxconn.
The German law certainly steps out in liability exposure in a way that American law does not permit. If the alien tort statute is not an appropriate vehicle to effect human rights accountability in the American private sector, and subsequent legislation is not forthcoming, the United States will be increasingly divergent from the EU in relying on market forces alone to ensure corporate social responsibility. And as Shankar Vedantam of The Hidden Brain reported on NPR, the free market might not cut it.
[UPDATE: On April 24, 2018, the U.S. Supreme Court held, in Jesner v. Arab Bank, 5-4, that foreign corporations may not be held liable under the U.S. Alien Tort Statute.]
These recurring factory tragedies have short half-lives in western media, owing to time-honored if callously objective journalistic measures of relevance (e.g., Jacoba Urist in The Atlantic). But the connection between these deaths and our daily lives in the west runs much deeper. These deaths represent just one adverse consequence of fast fashion, the global commercial trend that gives us retail clothing at an affordable cost that dramatically undervalues human and environmental externalities. My friend and colleague Nick Anguelov (Twitter) speaks powerfully on this subject and wrote about it in his 2015 book, The Dirty Side of the Garment Industry (CRC Press, Amazon) (see also Nick at UIA, on this blog).
Claudia Müller-Hoff and Carolijn Terwindt, advocates with the European Center for Constitutional and Human Rights, recently highlighted the German case for the Oxford Human Rights Hub and Law of Nations blogs. As they explain, a decision is now anticipated on claims in Dortmund by four plaintiffs against KiK, a clothing retailer that was the principal customer of the Karachi factory. Forensic architects in the U.K., Goldsmiths at the University of London, produced an unsettling and damning video that aided the plaintiff's case, published online two months ago.
A meaningful "win" for plaintiffs came once already in the court's preliminary ruling to admit the case under a German federal law, adopted in December 2016, the "National Action Plan on Business and Human Rights." The law represented implementation in the EU of the U.N. Guiding Principles on Business and Human Rights, which are, in turn, an instrument of the corporate social responsibility movement and under the umbrella of the U.N. Sustainable Development Goals.
The German law, as reported by Müller-Hoff and Terwindt, states: “Anyone who considers that his or her rights have been infringed in Germany by the actions of an enterprise can make claims before the civil courts.” The law is heralded as an important advancement for human rights protection in the vein of universal jurisdiction, though it reasonably does require a jurisdictional connection to Germany.
The KiK case has a parallel in the U.S. alien tort case currently pending in the U.S. Supreme Court, Jesner v. Arab Bank (SCOTUSblog). Jesner was heard in oral argument in October; see this excellent analysis by Amy Howe. The dispute in Jesner focuses principally on whether the alien tort statute applies to corporations. Meant to give U.S. courts jurisdiction over violations of international law, probably to protect commerce, the statute dates to the Judiciary Act of 1789, when corporations and international law were both very different from what they are today.
The U.S. Supreme Court has evidenced reluctance to construe the statute as broadly as its text might suggest in contemporary terms. Previous case law established that the statute cannot reach a "foreign cubed" case—foreign plaintiff, foreign defendant, and foreign soil—but myriad questions remain. Since the 1980s, human rights advocates have championed the alien tort statute as an appropriate mechanism to protect human rights abroad. The WNYC podcast More Perfect did an outstanding episode in October on the history of the statute: Enemy of Mankind. (Amy Howe also wrote a good summary here.) For the skeptical view of Jesner's and the statute's viability in this vein, see an excellent op-ed by Professor Samuel Estreicher in the New York Law Journal in January.
There has been some speculation that the Court might duck the corporate liability question in Jesner by ruling instead that the case is foreign cubed. And there lies the interesting parallel to KiK. The plaintiffs in Jesner seek to hold Amman-based Arab Bank liable for financing terrorism in Israel and Palestine. To satisfy the "touch and concern"-the-United-States jurisdictional test, plaintiffs-petitioners rest their case on a rather thin reed: that a U.S. office of the bank had a hand in laundering funds for Hamas. In Germany, the only link to German jurisdiction is KiK's role as principal buyer from the Pakistani factory. It's hard to imagine such a connection supporting liability in conventional tort analysis in American law; think of Apple's more-moral-than-legal responsibility for working conditions at Chinese Foxconn.
The German law certainly steps out in liability exposure in a way that American law does not permit. If the alien tort statute is not an appropriate vehicle to effect human rights accountability in the American private sector, and subsequent legislation is not forthcoming, the United States will be increasingly divergent from the EU in relying on market forces alone to ensure corporate social responsibility. And as Shankar Vedantam of The Hidden Brain reported on NPR, the free market might not cut it.
[UPDATE: On April 24, 2018, the U.S. Supreme Court held, in Jesner v. Arab Bank, 5-4, that foreign corporations may not be held liable under the U.S. Alien Tort Statute.]
Sunday, March 25, 2018
Mass. high court allows generic-drug consumer to sue Big Pharma for reckless labeling
Just more than a week ago, the Massachusetts Supreme
Judicial Court (SJC) issued an adroit and important decision on drug
manufacturer liability. In a decision
worthy of other states’ attention, the SJC allowed a common law recklessness
claim for failure to warn, unobstructed by federal preemption. The case is Rafferty v. Merck & Co., No. SJC-12347 (Mar. 16, 2018) (PDF), per
Chief Justice Ralph Gants.
It was in the last season of Boston Legal in 2008 (s5e02)
that Alan Shore (James Spader), maybe my favorite TV lawyer, took on Big Pharma,
right on the heels of victory over Big Tobacco.
In real life, Big Pharma has long been about the business of avoiding tort
liability. When labeling defects have
been alleged, the Big Pharma defense has found traction in federal preemption,
owing to the FDA’s close supervision of labeling under the Food, Drug, and Cosmetic
Act, 21 U.S.C. §§ 301,
et seq.
One thread of this debate involves the relative responsibilities
of brand-name and generic manufacturers.
In 2011, in PLIVA, Inc. v. Mensing,
564 U.S. 604, the U.S. Supreme Court, 5-4, rejected liability for a generic
drug maker accused of failure to warn of side effects when the label matched
that of the brand-name equivalent.
![](https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhKDSMcVJ_VGrIDKomsuqCoOBQuaaN3P-XgB_pij3LZ6APHbBVUrWASmUJXsl4GZpGIe7F7-EYACRtUxU6FMx5MmhjPO33-SCgyEB66ruuBIiJ4cy9aDl1NWlcqpZHQZ3rCdVvOV95JAHVk/s320/Proscar.png)
Significantly, then, the plaintiff admittedly complained against
a defendant whose drug he did not take.
But the plaintiff traced causation to Merck, because FDA regulation of
generic drugs compelled the generic maker to copy the Merck label, and PLIVA precluded liability for the
generic maker. The trial court
dismissed, holding that brand-name-maker liability to a patient who did not
take the maker’s drug also would “disturb the balance struck” by statute and
regulation for the approval of generic drugs.
The SJC regarded the problem as one of duty. Typically, the court explained, a
manufacturer owes a duty of care only to consumers of the manufacturer’s own products. The First Circuit upheld that logic in a 1983
case under Massachusetts law, Carrier v.
Riddell, Inc., 721 F.2d 867. The
court, per then-Circuit Judge Stephen Breyer, denied recovery to a high school
football player who blamed a helmet defect for his severe spinal injury. He had not used the defendant-manufacturer’s helmet,
but teammates had. He alleged that had
the defendant properly labeled its helmets, he would have been informed properly
about his own. The SJC further
analogized the problem to the effort to hold responsible for a shooting an
earlier-in-time actor accused of failing to secure the firearm. The key to this duty analysis, the court
explained, is the foreseeability of a plaintiff-victim—reminiscent of Judge
Cardozo’s classic “orbit of duty” analysis in Palsgraf.
Duty in the drug liability problem, the SJC reasoned, is not
the same as the product liability analysis in Carrier. Rather, consistently
with the federal regulatory scheme, Merck knows that generic manufacturers will
be compelled to rely on its labeling. Merck
therefore has control over the generic
label, and duty follows control. One
might say that the consumers of the generic drug are therefore foreseeable
victims, for duty purposes, or that the chain of proximate causation runs
intact through the intermediary generic maker, because the intermediary lacks
control over the label. Like Palsgraf itself, the case demonstrates
the fluid interchangeability of duty and causation.
However, the court further reasoned, negligence, like strict
liability, might be too low a liability threshold. Shifting the liability of generic consumers
on to brand-name makers adds to the cost of drug research and development in a
way that might interfere with the legislative-regulatory scheme. Under PLIVA, the brand-name maker could not
share joint liability with the generic maker.
At the same time, allowing the brand-name maker wholly to escape
liability would allow an injured plaintiff no recovery under any circumstances. A balance may be struck, the court concluded,
when the plaintiff can prove recklessness, or more, intent, on the part of the
brand-name maker.
The court wrote: “We have nevertheless consistently recognized
that there is a certain core duty—a certain irreducible minimum duty of care, owed
to all persons—that as a matter of public policy cannot be abrogated: that is,
the duty not to intentionally or recklessly cause harm to others.” The court analogized to the duty of care owed
by defendants in other exceptional areas of Massachusetts tort law: landowner to
trespasser, defamation defendant to public figure, bailee to bailor, and
athletes and coaches to competitors.
Otherwise put, the court maintained the essential balance of
tort law upon its four fundamental elements, duty, breach, proximate cause, and
injury. The extension of liability to a
defendant-manufacturer who did not actually make the injurious product depressed
the thresholds for duty and causation.
To maintain balance, the requisite standard of breach is amplified to
recklessness or intent. Physical injury remains
constant.
Chief Justice Gants’s opinion in Rafferty is insightful and masterful. It takes account of the greater endeavor of
tort law to define civil wrongs, while balancing the corrective role of the
judiciary with the policy-making role of the legislative and executive branches,
and also striking a balance in federalism between tort accountability in the
states and market regulation under the Commerce Clause. At the same time, the decision recognizes how
these balances are struck across the body of tort law in areas that usually
seem only distantly related, from premises liability to reputational harm to sports. This would be one for the casebooks, if
casebooks were still a thing.
Labels:
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duty,
FDA,
Massachusetts,
Merck,
negligence,
Palsgraf,
pharmaceuticals,
preemption,
product liability,
Ralph Gants,
recklessness,
strict liability,
Supreme Judicial Court
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