Recent Developments in Media, Privacy, and Defamation Law

RECENT DEVELOPMENTS IN MEDIA, PRIVACY, AND DEFAMATION LAW

Shari Albrecht, John P. Borger, Patrick L. Groshong, Ashley Kiss- inger, Joseph R. Larsen, Katharine Larsen, Thomas Leatherbury, Steven P. Mandell, Katherine E. Mast, Catherine Van Horn, Leita Walker, Thomas J. Williams, and Steven Zansberg

I. Defamation ...... 361 A. Public Concern and Substantial Truth: Bad News for Criminals ...... 361 B. Fair Report and Absolute Privileges: More Bad News for (Alleged) Criminals ...... 361 C. New York Court Protects Identity of Gmail E-mail Sender ...... 362 D. Expansion of Anti-SLAPP Laws, CSI , and a Celebrity Soccer Star to Boot ...... 363

Steven P. Mandell is a partner at Mandell Menkes LLC in Chicago. Shari Albrecht is a principal at Albrecht Law LLC in Chicago. John P. Borger is a partner and Leita Walker is an associate at Faegre Baker Daniels in Minneapolis. Thomas J. Williams is a partner at Haynes and Boone, LLP, in Fort Worth. Steven Zansberg and Ashley Kissinger are partners in the Denver office and Katharine Larsen is an associate in the Philadelphia office of Levine Sullivan Koch & Schulz, L.L.P. Thomas Leatherbury is a partner at Vinson & Elkins LLP in Dallas. Patrick L. Groshong is Assistant Vice President—Claims at AXIS PRO in Kansas City. Katherine E. Mast is a senior associate in the Los Angeles office of Sedgwick LLP, and Joseph R. Larsen is special counsel in the firm’s Houston office. Cath- erine Van Horn is of counsel at Genovese Joblove & Battista, P.A., in Miami. Mr. Borger is a former chair of the TIPS Media, Privacy, and Defamation Law Committee. Mr. Zansberg is a former chair and current vice chair. Messrs. Borger and Groshong and Ms. Mast are also committee vice chairs. The authors acknowledge the assistance of summer as- sociates Aaron Knoll (University of St. Thomas) and Kathleen Cullinan (Yale Law School).

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II. Privacy ...... 364 A. Misappropriation ...... 364 B. False Light Invasion of Privacy ...... 365 C. Intrusion ...... 367 D. Publication of Private Facts ...... 368 III. Internet Law ...... 368 A. Unmasking Anonymous Online Speakers ...... 368 B. Section 230 Immunity for Third-Party Content ...... 370 C. Personal Jurisdiction ...... 372 D. Single Publication Rule ...... 374 IV. Access ...... 375 A. The Supremes ...... 375 B. Access to Court Proceedings ...... 376 C. Access Under State Freedom of Information Acts ...... 377 V. Newsgathering ...... 378 VI. Reporter’s Privilege ...... 382 A. Federal Legislative Efforts and Cases ...... 382 B. State Legislation and Cases ...... 385 VII. Insurance ...... 386 A. Defamation ...... 386 1. Recent Developments Regarding Intentional Acts Exclusions ...... 386 2. Defamation May Only Be Inferred for Purposes of Coverage When the Elements Are Alleged in the Complaint ...... 387 B. Media: Content of Labeling and Marketing Is Not Loss Arising from Creation or Dissemination of Advertising Material Relating to Covered Media for Purposes of Media Wrongful Acts Coverage ...... 388 C. Privacy ...... 389 1. Developments in Liability Coverage for Fax Blasting Claims ...... 389 2. Alleged Acts of Sexual Harassment Not Covered Privacy, Slander, or Defamation ...... 391

The Supreme Court provided much of the interest during this survey period, in Snyder v. Phelps 1 and a pair of cases taking a narrow view of FOIA exemptions. On the other side of the coin, advocates for open government in Texas have been having a rough go of it. Developments relating to the

1. 131 S. Ct. 1207 (2011).

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website WikiLeaks and phone hacking allegations will doubtless continue to be the subject of legal scrutiny in years to come.

i. defamation A. Public Concern and Substantial Truth: Bad News for Criminals A Massachusetts appellate court ruled that a convicted felon’s online dating life is a matter of public concern. In LaChance v. Boston Herald , a three- article newspaper series reported that a prison inmate—incarcerated for aggravated rape—had been using an online dating service called “Inmate Connections” to meet women. 2 In his posted advertisement, the inmate indicated that he was only in prison for manslaughter, but the article stated that he was committed for a “brutal sexual attack on an elderly woman.”3 The court held that the inmate was a limited-purpose public figure because the danger of interacting with violent felons online is a matter of public concern, and it held that the statements were made without actual malice.4 It also held that the article’s purpose was to create public awareness: “In context, the ‘gist’ of the articles in this regard was . . . that the plaintiff’s particular advertisement was dangerously deceptive by withholding his crimes while portraying himself in a light that would seem more innocu- ous to potential respondents on a match-making Web site.”5 In a gang-affiliation defamation case profiled in this survey last year, Bustos v. A & E Television Networks , the Tenth Circuit affirmed the district court’s decision, holding that the statement that an inmate was a member of the Aryan Brotherhood prison gang was substantially true because he “conspired with the Brotherhood in a criminal enterprise.”6 B. Fair Report and Absolute Privileges: More Bad News for (Alleged) Criminals Winner of this year’s award for “Creepiest Plaintiff ” is Steven Klig, who sued Harper’s Magazine after it published excerpts from a criminal complaint against him.7 In 2009, a U.S. Attorney’s Office filed a criminal complaint against Klig for extortion and stalking based on correspondence in which Klig threatened to circulate a sex tape featuring his ex unless she sent him nude photographs of herself. Harper’s published verbatim excerpts of

2. 942 N.E.2d 185 (Mass. App. Ct. 2011). 3. Id . at 186. 4. Id . at 188. 5. Id . at 188–89. 6. No. 10-1253, 2011 WL 2816869, at *1 (10th Cir. July 19, 2011). 7. Klig v. Harper’s Magazine Found., 2011 N.Y. Misc. LEXIS 2098, 39 Media L. Rep. (BNA) 1997 (N.Y. Sup. Ct., Nassau Cnty., May 4, 2011).

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the correspondence included in the complaint in its “Readings” section under the title “You’re a Mean One, Mr. Klig.”8 Klig admitted that he sent the e-mails but argued that Harper’s failure to use the word “allegedly” would lead readers to infer that he had actually been convicted of blackmail- ing when he had not.9 The court found this argument “entirely unavailing” primarily because the introductory paragraph explicitly stated both that the quoted material was part of a criminal complaint and that Klig had pleaded not guilty to the charges against him.10 Meanwhile, in Norman v. Borison ,11 the Maryland Court of Appeals rejected the claim that defendants, all class action attorneys, defamed plaintiff by circulating copies of court complaints and by speaking to a reporter. The plaintiff, who was implicated by the complaints as having participated in “the single largest mortgage scam in Maryland history,” argued that defendants’ publication of the complaint was not privileged because they provided the press with a copy before the complaint was filed in state court. 12 The court rejected this argument, finding that “the press could be seen as a tool assisting in the notification to potential class members of the con- templated proceedings.”13 Thus, it considered defendants to have issued the statements at issue “during the course of the putative class action.”14 As to publication of subsequent versions of the complaint on the Inter- net, such publication occurred after the complaints had been filed, and “[o]nce a document is made public, Maryland law does not limit who, where, or the extent to which one may view that document.” 15 Finally, the court concluded that verbal statements to the press were also protected by an absolute privilege because they were made to promote public awareness of the proposed class action claim.16 C. New York Court Protects Identity of Gmail E-mail Sender After grappling with dynamic issues of libel law and the Internet, a New York court refused to order Google to disclose identifying information about the sender of an allegedly defamatory e-mail sent through its Gmail server. In Sandals Resorts International Ltd. v. Google, Inc ., a Caribbean resort operator sought the identity of the sender of an e-mail criticizing the company’s

8. Id . at *8. 9. Id . at *9, 12, 16. 10. Id . at *16 –17. 11. 17 A.3d 697 (Md. 2011). 12. Id . at 701. 13. Id . at 716. 14. Id . 15. Id . at 717. 16. Id .

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treatment of native Jamaicans.17 The e-mail scrutinized the company’s policy of only hiring foreigners for its senior managerial positions: “Why are poverty-stricken Jamaican taxpayers subsidizing the billion dollar tourist industry . . . ‘[m]aking foreign millionaires at Jamaicans’ expense?’ ”18 But the court rebuffed these efforts, deeming the online communication mere opinion, a rhetorical denouncement that native Jamaicans were financially supporting tourism without any return on their investment.19 Primarily, the court considered the “broader social context” of the e-mail, reasoning that “the culture of Internet communication . . . encourag[es] a freewheeling, anything-goes writing style” unhindered by the barriers and editing process of traditional media. 20 In other words, given that anonymous, incoher- ent Internet posts are likely to be viewed by the reader with greater factual skepticism, courts should take into account the “tenor of the chat room or message board in which they are posted, and the language of the statements” in distinguishing libelous assertions from nonactionable opinion.21 D. Expansion of Anti-SLAPP Laws, CSI , and a Celebrity Soccer Star to Boot On June 17, 2011, Texas became the twenty-seventh state to enact an “anti- SLAPP” statute.22 Also known as citizens participation acts, these statutes prevent lawsuits aimed at silencing citizens from petitioning government officials through the threat of expensive and prolonged litigation. Several courts expanded the scope of anti-SLAPP laws this past year. In a defamation suit involving an elementary school principal and critics of her disciplinary style, the First Circuit held for the first time that Maine’s anti-SLAPP statute applied in federal court.23 And in Illinois, three state court decisions made clear that the statute applies to all constitutional forms of political expression, regardless of whether they involve matters of significant public concern or are made in a public forum. In the first case, the court dismissed a development group’s defamation suit against the president of a condominium association even though his statements identifying the developer as a fraud were made after a public meeting adjourned.24 In the second case, the court dismissed a

17. 925 N.Y.S.2d 407 (N.Y. App. Div. 2011). 18. Id . at 409. 19. Id . at 410. 20. Id . at 415. 21. Id . 22. Citizens Participation Act, Tex. Civ. Prac. & Rem. Code Ann . § 27.001–.011 (2011). 23. Godin v. Schencks, 629 F.3d 79, 92 (1st Cir. 2010) (reasoning that Erie ’s twin aims of discouraging forum shopping and inequitable administration of the laws would be disserved if federal law applied). 24. Wright Dev. Group, LLC v. Walsh, 939 N.E.2d 389, 398–99 (Ill. 2010).

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condominium association’s defamation suit against a former resident even though her statements accused the association of individualized religious discrimination after it barred her from displaying a Jewish mezuzah on her doorpost.25 And in the third case, the court dismissed a former high school basketball coach’s suit against parents even though their statements criticizing the coach’s badgering and bullying style were made outside the official school board meeting.26 Meanwhile, California courts were dealing with flashier anti-SLAPP cases: television stolen identities and sports-superstar affair allegations. In Tamkin v. CBS Broadcasting, Inc ., the court dismissed a defamation claim brought by two real estate agents who alleged that a writer of the forensics show CSI modeled characters after them and posted casting synopses online containing their real names and defamatory statements. 27 Given that mere similarity or identity of names is insufficient to demonstrate that a fictional work concerns a real person, the court reasoned that no reasonable person would confuse the actual agents with those cast on the show. 28 And in Beckham v. Bauer Publishing Co., L.P ., world-renowned soccer player David Beckham brought a defamation suit against a tabloid magazine because of an article asserting that Beckham was having “encounters” with a particular woman.29 The court dismissed the claim, reasoning that because Beckham was no stranger to the media and often put himself in the public spotlight, his private conduct was thus of public interest.30

ii. privacy A. Misappropriation A professional boxer known as “Butterbean” who claimed that a film trailer for the animated movie Despicable Me used his likeness for an animated character could not maintain a misappropriation claim against the trailer’s producers, an Alabama federal district court held, concluding that both the film itself and the trailer promoting the film were constitutionally protected expressive works.31 Ruling on the producers’ motion to dismiss, the court found that the plaintiff had pleaded sufficient facts to raise the right

25. Shoreline Towers Condo. Ass’n v. Gassman, 936 N.E.2d 1198, 1206 – 07 (Ill. App. Ct. 2010). 26. Sandholm v. Kuecker, 942 N.E.2d 544, 563 (Ill. App. Ct. 2010). 27. 122 Cal. Rptr. 3d 264 (Cal. Ct. App. 2011). 28. Id . at 274 –75. 29. No. CV 10-7980-R, 2011 WL 977570 (C.D. Cal. Mar. 17, 2011). 30. Id . at *1. 31. Esch v. Universal Pictures Co., Inc., No. 6:09-cv-02258-JEO, 2010 U.S. Dist. LEXIS 140543, at *16 (N.D. Ala. Nov. 2, 2010).

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to relief above the level of mere speculation and therefore survived the test of Bell Atlantic Corp. v. Twombly ,32 but that even if the animated character in the trailer was in fact the plaintiff (which the defendants denied), both the trailer and the film it promoted were protected by the First Amendment as expressive works.33 A federal court in Illinois also evaluated a matter of public concern, but in the context of a routine traffic stop and reality television show. 34 In Best v. Berard , police pulled a woman over for expired license plates. One of the police officers involved was being filmed for the Biography Channel production Female Forces . While the cameras were rolling, the officer con- ducted a field sobriety test, arrested the woman for an expired license, and then found a pipe and a small amount of marijuana in the car. The woman sued, claiming that she never consented to being taped, but the court dismissed the claim, holding that even in an entertainment program, truth- ful, newsworthy facts about an arrest, which could likewise be printed in a newspaper, are matters of public concern.35 B. False Light Invasion of Privacy As in prior years, the outcomes of false light cases varied, often turning on the precise language of the story or broadcast in question. For example, in Tomblin v. WCHS-TV8 , 36 the Fourth Circuit allowed the owner of a daycare center at which the mother of a four-year-old boy alleged that her son had been sexually abused by another four-year-old to proceed to trial on false light and defamation claims arising out of a television station’s report of the incident. In the television story, the reporter stated, “A woman says this daycare in Barboursville abused her trust and her child.”37 The daycare owner alleged that the broadcast falsely insinuated that she or one of her employees had abused the child when in fact the abuse had been committed by another child. Reversing a trial court summary judgment in favor of the television station, the court of appeals held there were “numerous material statements . . . capable of multiple interpretations” and therefore a fact issue existed as to the false light claim.38 Similarly, in Grogan v. KOKH, LLC , an Oklahoma Court of Civil Ap- peals found a triable fact issue on a high school basketball coach’s false light claim arising from a television station’s report about complaints that

32. 550 U.S. 544 (2007). 33. Esch , 2010 U.S. Dist. LEXIS 140543, at *17. 34. Best v. Berard, No. 09 C 7749, 2011 WL 832234 (N.D. Ill. Mar. 3, 2011). 35. Id . at *6. 36. No. 10-1136, 2011 U.S. App. LEXIS 9752 (4th Cir. May 11, 2011). 37. Id . at *5. 38. Id . at *5, 8.

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the coach had threatened to “have students shot” after a minor incident at a basketball game.39 The false light claim was based upon a portion of the story in which the reporter, standing in front of the school gymnasium under a graphic reading “Threat or Misunderstanding” with the plaintiff’s picture superimposed, said, “On the heels of terrorist threats at local schools . . . some parents . . . are fuming. They say a teacher threatened their children and he should be punished like anyone else.”40 The plaintiff argued that showing his picture while discussing “terrorist threats at local schools” falsely portrayed him as a terrorist involved in the shooting of students. The trial court granted summary judgment to the television station, but the appeals court reversed, concluding “that the lead-in is capable of the meaning argued by” the plaintiff.41 A federal district court in Tennessee denied a motion to dismiss a false light claim arising from the reality program The Squad: Prison Police , a show that followed the activities of agents at a Tennessee prison. 42 The plaintiff, a prisoner’s wife, alleged that she was filmed without her consent and that the program implied she was attempting to smuggle drugs to her husband. At the beginning of the program a prison official said that he was “suspi- cious” of the plaintiff, although the program also reported that no contra- band was found on the plaintiff or her husband and that the concern about the plaintiff turned out be a “false alarm.” In denying a motion to dismiss the false light claim, the court found that the program “could be viewed by a reasonable jury as holding Plaintiff in a false light,” in that a jury could conclude that “Plaintiff was a drug smuggler who just happened not to get caught” on the day she was filmed.43 Conversely, a federal district court in Ohio granted a defendant’s motion for summary judgment in a false light case brought against a police officer who, when referring in an interview to the plaintiff (who had been acquit- ted of a criminal charge), said that the plaintiff’s acquittal “doesn’t mean he’s innocent.”44 Finding that under Ohio law a false light claim may only be based on a statement that is false, the court held that the truthfulness of the defendant’s statement—that an acquittal in a criminal trial does not necessarily mean the defendant is innocent—barred the false light claim.45

39. 256 P.3d 1021 (Okla. Civ. App. 2011). 40. Id . at 1026. 41. Id . at 1029. 42. Battle v. A&E Television Network, No. 3:11-0013, 2011 U.S. Dist. LEXIS 82407, 2011 WL 3205359 (M.D. Tenn. July 27, 2011). 43. Id . at *16. 44. Roth v. Sloan, No. 1:08 CV 1656, 2011 U.S. Dist. LEXIS 46171, 2011 WL 1627932 (N.D. Ohio Apr. 29, 2011). 45. Id . at *24.

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C. Intrusion In what was undoubtedly the most closely watched privacy case of the survey period, Snyder v. Phelps , the U.S. Supreme Court held that the First Amendment protected from liability church members who picketed the funeral of the plaintiff’s son, reaffirming that First Amendment principles require tolerance of “insulting, and even outrageous, speech” in public de- bate.46 In Snyder , the plaintiff’s son, a Marine, was killed in the line of duty. The plaintiff held his son’s funeral at a local church, and notice of the funeral was published in newspapers.47 Fred Phelps, the founder of Westboro Bap- tist Church in Kansas, and six of his church members learned of the funeral and decided to picket the service, claiming that doing so would illustrate their belief that homosexuality is a sin, that America is unduly tolerant of homosexuality, and that God “punishes” America for that tolerance by killing American soldiers. The plaintiff brought emotional distress and intrusion claims against the protestors and recovered $5 million in compensatory and punitive damages. 48 The Fourth Circuit reversed, finding the picketing to be fully protected by the First Amendment.49 The Supreme Court affirmed by a vote of 8–1.50 The Court held that the picketing was speech about a matter of public concern, therefore entitled to “special protection” under the First Amendment, and could not be restricted simply because it is “upsetting or arouses contempt.”51 Snyder attempted to overcome the First Amendment issue on his intrusion claim by arguing that even if the picketers’ speech was constitutionally protected he could recover under the “captive audience” doctrine, a doctrine under which the Court has previously upheld restrictions on speech to protect “unwilling listeners,” but the Court rejected that argument, noting that the picketers remained well away from the service and there was no evidence they interfered with the service itself.52

46. Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011). 47. Id . at 1213. 48. Id . at 1214. The jury had awarded the plaintiff $2.9 million in compensatory damages and $8 million in punitive damages, but the district court remitted the punitive damages to $2.1 million. Id . 49. Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), aff’d , 131 S. Ct. 1207 (2011). 50. Justice Alito dissented. 51. Snyder , 131 S. Ct. at 1219 (“Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the com- munity or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”) (quotations omitted). 52. Id . at 1220.

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D. Publication of Private Facts In Spilfogel v. Fox Broadcasting Co ., the Eleventh Circuit held that a plaintiff who was filmed without her knowledge during a traffic stop for an episode of COPS could not maintain a claim for public disclosure of private facts, finding that the plaintiff was recorded on a public street discussing the details of an incident in which she was stopped for running stop signs and driving without headlights.53 In Dyer v. Dirty World, LLC , a federal district court granted summary judgment to a defendant whose website published online photographs of a bikini-clad woman accompanied by unflattering comments about her.54 The court concluded that the plaintiff failed to allege that the defendant revealed any private facts about her, but rather complained that the statements posted on defendant’s website had been fabricated by a former boyfriend.55 The highest courts of two states rejected privacy claims by political fig- ures whose expunged criminal convictions were disclosed in the course of political campaigns in which they were involved. The New Hampshire Supreme Court concluded that an annulled criminal conviction of a candidate for public office is a matter of legitimate public concern and therefore the candidate could not maintain a claim for public disclosure of private facts against his opponent for “leaking” information about the annulled conviction to the news media.56 Similarly, the New Jersey Supreme Court, in a case brought by a candidate’s aide , held that the plaintiff did not have a “reasonable expectation of privacy” relating to his expunged criminal record because the records, prior to expunction, had been “so long in the public domain.”57

iii. internet law A. Unmasking Anonymous Online Speakers In cases involving efforts by a party to identify anonymous online speakers, courts have generally continued to follow a pattern of applying the high-burden Dendrite and Cahill tests where any kind of expressive speech

53. No. 10-12507, 2011 U.S. App. LEXIS 13651, 2011 WL 2623578 (11th Cir. July 5, 2011). 54. No. CV-11-0074-PHX-SMM, 2011 U.S. Dist. LEXIS 58844, 2011 WL 2173900 (D. Ariz. June 2, 2011) (applying Missouri law). 55. Id . at *8 –9. 56. Lovejoy v. Linehan, 20 A.3d 274, 279 (N.H. 2011). 57. G.D. v. Kenny, 15 A.3d 300, 321 (N.J. 2011). The court also rejected the plaintiff’s false light claim, finding that disclosure of an expunged conviction did not “have the capacity to give rise to a false public impression.” Id . at 308.

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is at issue.58 The Ninth Circuit, however, appears bent on carving a different path, at least in cases involving speech about commercial products and services. In In re Anonymous Online Speakers , the Ninth Circuit required that lower courts first examine the nature of the expressive speech at issue to determine the level of protection to accord the speaker’s identity.59 In that case, the plaintiff corporation asserted tortious interference and other business tort claims against a competitor and sought the identities of anonymous online critics. The court found that the speech at issue “related to the non-competition and non-solicitation clauses of Quixtar’s commercial contracts” and that, in this context, the high-burden Cahill standard “extend[ed] too far.”60 The court did not say what standard should apply but explained that “the nature of the speech should be a driving force in choosing a standard by which to balance the rights of anonymous speakers in discovery disputes” and that the “specific circumstances surrounding the speech serve to give context to the balancing exercise.”61 The Ninth Circuit reiterated and applied that test in SI03, Inc. v. Body- building.com, LLC .62 The court was unable to determine from the comments at issue whether they were “commercial speech” but reasoned that,

58. The seminal decisions discussing protections for online anonymity in the context of expressive speech are Dendrite International, Inc. v. Doe No. 3 , 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), and Doe v. Cahill , 884 A.2d 451 (Del. 2005). Recent decisions applying or recognizing the Dendrite/Cahill standard include Pilchesky v. Gatelli , 12 A.3d 430 (Pa. Super. Ct. 2011), and Koch Industries, Inc. v. John Does 1–25 , No. 2:10CV1275DAK, 2011 U.S. Dist. LEXIS 49529, 2011 WL 1775765, at *10 (D. Utah May 9, 2011) (“Although courts have adopted slightly different versions of the test, the case law has begun to coalesce around the basic framework of the test articulated in Dendrite .”) (quotation omitted). But see Fodor v. Doe, No. 3:10-CV-0798-RCJ (VPC), 2011 WL 1629572 (D. Nev. Apr. 27, 2011) (purporting to apply a Dendrite -style test but accepting allegations from the complaint in place of requisite evidence). In contrast, where the “speech” at issue is alleged to constitute copyright infringement, courts generally apply the low-burden tests, particularly those established in Sony Music Entertainment Inc. v. Does 1– 40 , 326 F. Supp. 2d 556 (S.D.N.Y. 2004), and Columbia Insurance Co. v. Seescandy.com , 185 F.R.D. 573, 578–80 (N.D. Cal. 1999). One recent decision applying a low-burden test was Zoosk Inc. v. Doe 1 , No. C 10-04545 LB, 2010 WL 5115670 (N.D. Cal. Dec. 9, 2010). 59 . 2011 WL 61635, 2011 U.S. App. LEXIS 487 (9th Cir. Jan. 7, 2011), replacing previous opinion at 611 F.3d 653 (9th Cir. 2010), denying cross-petitions for writs of mandamus in Quixtar Inc. v. Signature Mgmt. TEAM, LLC, 3:07-CV-505-ECR-RAM (D. Nev. Apr. 8, 2009) (Dkt. 409). In the original opinion, the court expressly concluded that the speech at issue was “commercial speech” worthy of less constitutional protection than “core” expressive speech. This determination was removed from the revised opinion. 60. Id . at *6 (observing that “the notion that commercial speech should be afforded less protection than political, religious, or literary speech is hardly a novel principle”). 61. Id . 62. 441 App’x 431 (9th Cir. June 29, 2011) (unpublished and nonprecedential).

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if the commenters “work for [plaintiff’s] competitors, there would be good reason to suspect that their harsh criticisms were intended to promote other, competing products” and were thus “commercial speech.”63 The court suggested that it may be “necessary to allow some disclosure”—even to the plaintiff’s attorneys—to resolve that issue, and remanded to the district court to determine the nature of the speech and the standard that should apply.64 The earlier case of Cornelius v. Deluca , which involved the same parties and anonymous speaker as SI03 , illustrates the weakness of the Ninth Cir- cuit’s approach.65 There, the subpoenaing plaintiff alleged that the speaker was an agent of the defendant-competitor but then failed to rebut defendant’s evidence to the contrary. Thus, even a limited disclosure to plaintiff’s counsel, as the SI03 court would have had it, would have been premature and unwarranted.66 Additionally, the media’s latest effort to use a state shield law to fend off a subpoena for an anonymous website commenter’s identity failed in Indiana. The Indianapolis Star raised the Indiana shield law among other defenses in its motion to quash, but the court denied the motion without explanation.67 The decision is on appeal and, given the shield law’s broad language, which protects against the disclosure of “the source of any information procured or obtained” by the news media, reversal is possible.68 B. Section 230 Immunity for Third-Party Content Courts have continued to apply immunity under section 230 of the Com- munications Decency Act69 to a wide range of activities associated with running a website, including editorial choices (selecting and promoting content) and encoding text for purposes of search engine optimization.

63. Id . at 432. 64. Id . at 432 n.1. 65. Cornelius v. Deluca, No. 1:10-CV-027-BLW, 2011 U.S. Dist. LEXIS 27213, 2011 WL 977054, at *6 (D. Idaho Mar. 15, 2011), amending 2010 WL 4923030 (D. Idaho Nov. 29, 2010). 66 . The Cornelius decision is also noteworthy in that it took the Ninth Circuit’s new ana- lytical framework a step further. The court determined that the speech at issue was “deserving of more protection than mere commercial speech but less than speech that lies at the heart of First Amendment values, such as religious or political speech.” Id . at *4. Rather than articulate a new test that would apply to this intermediate category of speech, the court denied disclosure on the sole basis that the plaintiff had not demonstrated a “compelling need” for the anonymous speaker’s identity. Id . at *4 –5. 67. Miller v. Junior Achievement of Cent. Ind., Inc., No. 49D14-1003-PL-014761 (Ind. Super. Ct. Marion Cnty. Feb. 28, 2011), appeal pending , In re Ind. Newspapers Inc., No. 49A02- 1103-PO-00234. 68. Ind. Code § 34-46-4-2. 69. 47 U.S.C. § 230.

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In Shiamili v. Real Estate Group of New York , New York’s highest court held that promoting an anonymous user’s comment to a stand-alone post did not make a blog manager a “content provider” not entitled to immunity; so long as somebody else provides the actual content, a website operator remains immune while performing the “publisher’s traditional editorial functions” of selecting, promoting, or editing the content, or even encour- aging the posting of negative comments.70 Although section 230 immunity would not extend to any headline, subheading, or illustration that was actually authored by the website operator, none of that content was defamatory.71 On similar facts, the court in Reit v. Yelp!, Inc . held that selectively removing positive user comments to a consumer review site (as the plaintiffs had alleged) was statutorily protected editorial treatment of content provided by others and therefore entitled to immunity under section 230.72 Courts also extended section 230 protection to encoding processes, particularly those used to boost search results. In Asia Economic Institute v. Xcentric Ventures LLC , the operators of RipoffReport.com, a consumer complaint site, advised users on issues of style (such as not writing in all capital letters) and used the text of the customer’s complaint to create meta- tags so that Google or Yahoo search engines could more readily find that text.73 The court rejected the plaintiff’s claim that this process of encoding, particularly with keywords “rip-off, ripoff and rip off,” rendered the defendant a “content provider.”74 The court noted that the text itself came from third parties and was not “visible to consumers.” 75 The court in Black v. Google Inc . rejected a similar argument concerning Google’s source code.76 The court in M.A. v. Village Voice Media Holdings, LLC rejected a series of more novel plaintiff’s arguments.77 In that case, a teenage victim of child prostitution sought to hold the website Backpage.com, on which her former pimp had solicited customers, liable for aiding and abetting under a federal statute providing a private cause of action to victims of child trafficking and prostitution.78 Stating it was sympathetic, the court

70. 952 N.E.2d 1011, 17 N.Y.3d 281 (N.Y. 2011). This is in line with the general reaction of lower courts to Fair Housing Council v. Roommates.com, LLC , 521 F.3d 1157 (9th Cir. 2008) (en banc) (holding that a website was not immune where it created a questionnaire for users that included exclusively unlawful discriminatory responses but was immune for invited comments). 71. Shiamili , 952 N.E.2d at 1019–20. 72. 907 N.Y.S.2d 411 (N.Y. Sup. Ct. 2010). 73. No. CV 10-01360 SVW, 2011 WL 2469822, at *2–3 (C.D. Cal. May 4, 2011). 74. Id . at *3. 75. Id . at *6. 76. No. 10-02381 CW, 2010 WL 3222147 (N.D. Cal. Aug. 13, 2010), aff’d , No. 10-16992, 2011 WL 5188426 (9th Cir. Nov. 1, 2011) (Table). 77. 2011 U.S. Dist. LEXIS 90588, 2011 WL 3607660 (E.D. Mo. 2011). 78. Id ., 2011 WL 3607660, at *1.

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nevertheless held that Backpage was immune despite providing a “search engine for adult categories” with keywords and engaging in marketing aimed at boosting the “value” of the ads used to solicit customers.79 To hold the site liable based on how it “structured its website in order to increase its profits would be to create a for-profit exception to § 230’s broad grant of immunity. This the court may not do.” 80 Two websites whose business practices were alleged to constitute tortious wrongs were found to fall outside of section 230’s immunity, as announced in Roommates.com . In Levitt v. Yelp! , a district court found that the plaintiff’s claims alleging a consumer review website’s sales practices included extortionate conduct in violation of California’s unfair business practices law were not allegations concerning the selection and editing of material and were thus not immune under section 230. 81 In Hill v. StubHub , a court found that the StubHub ticket-selling website was not entitled to section 230 immunity on plaintiff’s claims that its business practices violated state anti-scalping statutes: StubHub “encouraged, materially contributed to, and made aggressive use” of the pricing content posted by the website’s users by suggesting the illegal prices and directly benefitting from the illegal sale of Miley Cyrus concert tickets. 82 C. Personal Jurisdiction Courts continued to split over whether personal jurisdiction over defendants can be premised on the fact that defendants knew the plaintiff lived in the forum state and would therefore suffer the effects from Internet- distributed defamatory statements there. The Tenth Circuit held such allegations were insufficient to establish personal jurisdiction over a foreign defendant in Shrader v. Biddinger . 83 Biddinger had reposted the allegedly defamatory e–mail about the plaintiff to a web forum, in response to a question from another forum member. Biddinger, the other member, and the content of Biddinger’s e-mail, did not sufficiently target Oklahoma to justify jurisdiction there. The court held that the “restrictive approach” to the “effects test” of Calder v. Jones 84 requires that the defendant both “expressly aim[ ]” his conduct at the forum state and know that the “brunt of

79. Id . at *6 –7. 80. Id . at *8. Notably, too, the court limited the exception in section 230(e)(1), for certain matters in Title 18 of the U.S. Code, to actual criminal prosecutions, not civil causes of action authorized by such federal laws. Id . at *12–13. 81. No. 3:10-CV-01321-MHP, 2011 U.S. Dist. LEXIS 99372 (M.D. Cal. Mar. 22, 2011). Nevertheless, the court dismissed those claims on substantive grounds while allowing plaintiffs leave to amend. 82. No. 07 CVS 11310, 2011 NCBC LEXIS 4, at *36 (N.C. Super. Ct. Feb. 28, 2011). 83. 633 F.3d 1235 (10th Cir. 2011). 84. 465 U.S. 783 (1984).

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the injury” would be felt there; this requires more than that a known forum resident was targeted by the defamatory posting or communication.85 Here, Oklahoma was clearly not the focal point of Biddinger’s actions. The website and its forum were unconnected to Oklahoma; and the content of the e-mail dealt with the plaintiff’s work, which was worldwide. 86 Other courts have similarly refused to exercise personal jurisdiction over nonresident defendants where the statement at issue only mentioned the forum state incidentally, and where the plaintiff’s professional reputation was national in scope and was not sufficiently linked to the forum state in particular.87 In Clemens v. McNamee ,88 star baseball pitcher Roger Clemens sued his former athletic trainer over comments he made to a reporter for the website SI.com, and alleged that jurisdiction was proper because the trainer knew Clemens resided in Texas and would suffer harm there.89 Because the trainer’s statements were neither “made in Texas [n]or directed to residents of Texas,” but rather alleged activities in New York and Canada, the Fifth Circuit held that Texas was not the focal point so exercising personal jurisdiction in Texas was improper.90 Similarly, the court in BroadVoice v. T.P. Innovations found it could not exert personal jurisdiction over the nonresident defendant in Massachu- setts where the allegedly defamatory site did nothing to “incite” residents of the forum state, and there was no evidence any resident of the forum state had actually accessed the allegedly defamatory website.91 Applying Calder as well as the sliding-scale test for the level of interactivity of a site as set out in Zippo Manufacturing Co. v. Zippo Dot Com, Inc .,92 the court found that the website in question did not have the level of engagement with Massachusetts residents required for exercising personal jurisdiction.93 Reaching the opposite conclusion on a broader reading of Calder , the court in Jones v. Dirty World Entertainment held that personal jurisdiction

85. Shrader , 633 F.3d at 1241, 1244. 86. Id . at 1244 – 45. The District of Colorado relied on the above analysis in ruling on the same suit several weeks later. The plaintiff there argued that jurisdiction was proper in Colorado because one of the defendants as well as the forum site, Wave59, were based in the state. The district court found these facts insufficient to establish personal jurisdiction over Biddinger; Colorado was not the “focal point” of his posting, either in content or audience. Shrader v. Biddinger, No. 10-cv-01881-REB-MJW, 2011 WL 1085524 (D. Colo. Mar. 10, 2011). 87. Johnson v. Arden, 614 F.3d 785 (8th Cir. 2010); Lifestyle Lift Holding v. Prendiville, 768 F. Supp. 2d 929 (E.D. Mich. 2011). 88. 615 F.3d 374 (5th Cir. 2010), cert. denied , 131 S. Ct. 3091 (2011). 89. Id . at 379. 90. Id . at 380. 91. 733 F. Supp. 2d 219 (D. Mass. 2010). 92. 952 F. Supp. 1119 (W.D. Pa. 1997). 93. BroadVoice , 733 F. Supp. 2d at 225–27.

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could be exerted over a defendant who had known the effects of the allegedly defamatory statement would be felt where the plaintiff, a cheerleader for the Cincinnati Bengals, lived and worked.94 The plaintiff cheerleader actually lived in northern Kentucky, but in an area that fell within the greater Cincinnati region, which the court found was close enough for jurisdictional purposes. Applying the Zippo analysis, the court found “thedirty.com” website was sufficiently interactive—in facilitating a dia- logue between its operator and readers—to support the conclusion that the defendant had purposely availed himself of the laws of the forum state.95 Geographic facts about the plaintiff’s professional activities and reputation were also central to the holding of two other cases, both of which resulted in a finding of personal jurisdiction over non-forum-based defendants. In Buckles v. Brides Club, Inc ., the defendant set up a parody website that disparaged the professional life of his brother, the plaintiff. 96 As the fake blog included information about the plaintiff’s career in Utah, and because the plaintiff’s main clientele were based in the state, the court concluded the defendant had expressly aimed his publication at Utah and knew that the “brunt of the injury” would be felt there.97 Likewise in Hongjin Sui v. Wu , the plaintiffs’ business deals in Florida meant they possessed a reputation there. 98 Moreover, the alleged harm arising from the defendant’s statements was sufficient to support an inference that the defendant had aimed his conduct at that state in particular.99 D. Single Publication Rule In T.S. v. Cleveland Plain Dealer , the court held that plaintiff’s various tort claims, premised on a twenty-year-old newspaper article, were all time barred, despite the fact that the article was available via a Google search: “Al- though making a news article accessible on the Internet . . . increases its cir- culation, this is not a basis for deviating from the single-publication rule.”100

94. 766 F. Supp. 2d 828 (E.D. Ky. 2011). 95. Id . at 833. Similarly, a district court in Tennessee found that the defendant had sufficiently targeted Tennessee, in part because the comments at issue appeared in a forum dedi- cated to residents of that state. Thus, the defendant website operator was subject to personal jurisdiction in Tennessee. Nat’l Pub. Auction Co. v. Anderson Motor Sports, No. 3:10-00509, 2011 WL 465912, at *4 (M.D. Tenn. Jan. 31, 2011). 96. No. 2:08-cv-00849 CW, 2010 WL 3190751 (D. Utah Aug. 11, 2010). 97. Id . at *6. 98. No. 8:11-cv-37-T-23TBM, 2011 WL 1396994 (M.D. Fla. Apr. 13, 2011). 99. Id . at *5. 100. 954 N.E.2d 213, 215 (Ohio Ct. App. 2011). In contrast, in Williams v. University Medical Center of Southern Nevada , No. 2:09-cv-00554-PMP-PAL, 2010 U.S. Dist. LEXIS 76995, at *16 (D. Nev. July 28, 2010), the court found that the plaintiff’s information available in a limited-access database, the National Practitioner Data Bank, was not subject to the single publication rule because, unlike a newspaper, it is a not “widely and generally available, and thus . . . not a single, aggregate publication.”

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iv. access A. The Supremes The U.S. Supreme Court was active on access matters this survey period with regard to interpretation of exceptions under FOIA, continuing its general pattern of ruling in favor of disclosure by strictly construing its exceptions. FCC v. AT&T concerned withholding a corporation’s records under the “personal privacy” language of Exemption 7(C).101 AT&T argued that the word “personal” in Exemption 7(C) incorporated the statutory definition of the word “person” to include “an individual, partnership, corporation, association, or public or private organization other than an agency,” and the Third Circuit had agreed. 102 The Supreme Court rejected this argument, as much on semantic as on legal grounds. The statute defines “person” but not “personal.”103 In a somewhat lighthearted opinion, the Court gave a number of examples in which similar nouns and adjectives differed significantly in meaning: crab and crabby, and corn and corny. 104 The Court found that, in fact, the common meaning of “personal” was precisely the opposite of an artificial entity such as a corporation and that “personal privacy” suggests “human concerns.”105 In the concluding paragraph, the Court added: “We trust that AT & T will not take it personally.”106 Department of Navy v. Milner ,107 which also looked to the ordinary meaning of statutory language, resulted in a significant narrowing of what had become an expansive reading of FOIA Exemption 2, which allows withholding of documents “related solely to the internal personnel rules and practices of an agency.”108 Indeed, pre- Milner case law had spawned a new terminology: “Low 2” referred to materials concerning human resources and employee relations, while “High 2” referred to records whose disclosure would risk circumvention of the law. 109 A Puget Sound resident submitted FOIA requests for Explosive Safety Quantity Distance (ESQD) information, which prescribes “minimum separation distances” for explo- sives. The Navy invoked Exemption 2 and stated that disclosure would threaten security.110 The Ninth Circuit had approved, adopting the “High

101. 131 S. Ct. 1177, 1181 (2011). 102. AT&T Inc. v. FCC, 582 F.3d 490, 498 (3d Cir. 2009). 103. 5 U.S.C. § 551(2). 104. AT&T , 131 S. Ct. at 1181. 105. Id . at 1181–83. 106. Id . at 1185. 107. 131 S. Ct. 1259 (2011). 108. 5 U.S.C. § 552(b)(2). 109. Milner , 131 S. Ct. at 1263. 110. Id . at 1263–64.

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2” construction that shields material if it is “predominantly internal” and its “disclosure would significantly risk circumvention of federal agency functions.”111 The Supreme Court found this interpretation to be disconnected from Exemption 2’s text because it substitutes the word “predominantly” for “solely” and ignores the plain meaning of the adjective “personnel.” 112 Milner has foreclosed use of Exemption 2 for any records except those per- taining strictly to internal personnel matters, and the opinion is important for its strong holding on the need to construe exemptions narrowly and focus on the actual words of the exemption. B. Access to Court Proceedings The Fifth Circuit has found that the public and the media have a First Amendment right to notice that a sentencing hearing will be closed and an opportunity to be heard on the issue prior to closure. 113 The district court had declined to hear the Houston Chronicle ’s handwritten motion at the time it was walked in during Cardenas-Guillen’s sentencing hearing and granted the government’s motion to close the sentencing hearing for “security reasons”; the order and the government’s motion were sealed. 114 Hearst, the Chronicle ’s owner, appealed not the closure itself but the refusal to provide notice and an opportunity to be heard.115 The Fifth Circuit held that the First Amendment right of access applies to a sentencing hearing116 and cited opinions from other circuits that “have also recognized a First Amendment right of access to documents filed for use in sentencing hearings,” 117 suggesting that the Fifth Circuit may also apply the First Amendment qualified right to access to court records. The opinion leaves some room for the district court to address security concerns by providing notice that there is a motion to close a proceeding without revealing the type of proceeding and by filing its statement of reasons under seal.118

111. Id . at 1266. 112. Id . at 1267. 113. In re Hearst Newspapers, L.L.C., 641 F.3d 168 (5th Cir. 2011). 114. The court had also declined to hear the Chronicle ’s earlier motion to intervene requesting relief regarding numerous sealed motions and orders; the Chronicle had also sent a letter to the district court requesting notice and an opportunity to be heard with regard to closure of any proceedings. 115. Hearst , 641 F.3d at 181. 116. The Second, Fourth, Seventh, and Ninth Circuits have reached the same conclusion. Id . at 176 (citing United States v. Alcantara, 396 F.3d 189, 196 –99 (2d Cir. 2005); United States v. Eppinger, 49 F.3d 1244, 1252–53 (7th Cir. 1995); United States v. Soussoudis (In re Wash. Post Co.), 807 F.2d 383, 389 (4th Cir. 1986); CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 825 (9th Cir. 1985)). 117. Id . at 175–81 (emphasis added). 118. Id . at 184.

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C. Access Under State Freedom of Information Acts In O’Neill v. City of Shoreline , the Washington Supreme Court held that e- mail metadata is a “public record” under the Washington Public Records Act.119 A private citizen forwarded an e-mail to the city’s deputy mayor and a councilmember accusing the council of improper conduct; the deputy mayor identified Ms. O’Neill as an originator of the e-mail at a public meeting; and O’Neill requested a copy of the e-mail and its metadata.120 The court held that an electronic version of a record, including metadata, is a public record and “may contain information that relates to the conduct of government and is important for the public to know. It could conceiv- ably include information about whether a document was altered, what time a document was created, or who sent a document to whom.”121 The court also suggested that the state’s Records Management Guidelines, which allow the destruction of an electronic record provided that the governmental body prints a copy of the e-mail and files it in accordance with the records retention schedules, were inconsistent with Washington’s PRA.122 In a defeat for open government advocates, the Colorado Supreme Court held that the governor’s personal cell phone billing records were not public information.123 The governor was not reimbursed by the state for the bills, but the Post argued that this “privatization” of the governor’s conduct should not create a loophole in Colorado’s Open Records Act.124 The court concluded that the governor had not “made, maintained, or kept” the personal cell phone bills in his official capacity, as the statute required for disclosure.125 Two Texas Supreme Court open records cases were setbacks for advocates of open government in which the court crafted new common-law doctrines to permit withholding of information. The first case allows governmental

119. 240 P.3d 1149 (Wash. 2010). 120. Id . at 1151. The court defined metadata as “data about data, or hidden statistical information about a document that is generated by a software program . . . . ‘Metadata’ is ‘information describing the history, tracking, or management of an electronic document.’ ” Id . at 1152. 121. Id . 122. Id . at 1155. There is an ongoing controversy regarding the practice of the Office of the Governor of the State of Texas of automatically deleting all e-mails within seven days of their creation. Jay Root, Email Destruction Halted in Texas Governor’s Office , Tex. Trib. , available at http://www.texastribune.org/texas-people/rick-perry/request-halts-email-destruction- governors-office (last visited Nov. 7, 2011). 123. Denver Post Corp. v. Ritter, 255 P.3d 1083 (Colo. 2011). 124. Id . at 1086 – 87; see Colo. Rev. Stat. § 24-72-202(6)(a)(I) (statutory definition of public records). 125. Ritter , 255 P.3d at 1093. A strong dissent concluded that the court’s opinion “effec- tively encourages public officials to intermingle records of their official conduct with records of their personal conduct by granting them the sole discretion to determine whether and, if so, when to release such records to the public.” Id . at 1098.

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bodies to withhold governmental employees’ birth dates.126 The Dallas Morn- ing News sought the information and succeeded in the lower courts.127 The Texas Supreme Court reversed and relied on an exception to the statute, the personnel file exception, that the government had not pressed and sua sponte fashioned a new test based on the privacy test of Exemption 6 of the federal act.128 The court reviewed anecdotal evidence regarding the use of dates of birth in combination with other information to accomplish identify theft, and held that, when a protected privacy interest is at stake, “a requestor” must show that “the public interest sought to be advanced is significant— an interest more specific than having the information for its own sake—and that the information sought is likely to advance that interest.”129 The second Texas Supreme Court opinion will likely permit withholding of information concerning travel expenses for the security detail provided to the governor by the Texas Department of Public Safety.130 The court held that the common law may protect information that substantially threatens physical harm. DPS offered to release aggregated expense information but warned that releasing the travel vouchers themselves would reveal information about the security detail that “would be valuable information for someone who intended to cause [the governor] harm.” 131 The Texas Supreme Court again addressed an argument that had not been raised in the lower court, holding that freedom from physical harm is an independent interest protected under law, untethered to the right of privacy.132 The court remanded to the trial court to review whether the requested vouchers reveal specific details; the dividing line between disclosure and restraint must be determined by proof.133

v. newsgathering International events involving WikiLeaks and News of the World dominated the newsgathering scene for parts of this year.

126. Tex. Comptroller of Pub. Accounts v. Attorney Gen. of Tex., 2010 Tex. LEXIS 890, 2010 WL 4910163 (Tex. Dec. 3, 2010). 127. Id ., 2010 WL 4910163, at *1. 128. Id . at *3–5 (stating that the petition “fairly include[s]” a personnel file argument “[g]iven the unique circumstances of this case and the third party interests at stake”); see Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976) (“Information such as place of birth, date of birth, date of marriage, employment history, and comparable data is not normally regarded as highly personal, and yet . . . such information, if contained in a ‘personnel’ or ‘medical’ file, would be exempt from any disclosure that would constitute a clearly unwarranted invasion of personal privacy.”). 129. Tex. Comptroller , 2010 WL 4910163, at *9. 130. Tex. Dep’t of Pub. Safety v. Cox, 343 S.W.3d 112 (Tex. 2011). 131. Id . at 113. 132. Id . at 117. 133. Id . at 117–19.

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Allegations that News of the World paid police for information had been made as early as 2003, and complaints about alleged interception of voice- mail messages as early as 2005, but events escalated in 2011. 134 Amid reports of a growing number of victims of alleged phone hacking, News of the World published an apology and established a process to compensate claimants with “justifiable claims” in April 2011. Reported victims included celebrities; victims of the London July 7, 2005, bombings; and thirteen- year-old murder victim Milly Dowler. On July 7, three days after the disclosure about Milly Dowler, News Corp. announced that it was closing the News of the World . Prime Minister Cameron convened two inquiries, and parliamentary hearings are ongoing. In the United States, in July 2011, the FBI and the Department of Justice began an investigation; press reports indicate that investigators are looking into potential violations of privacy laws, the Foreign Corrupt Practices Act, and the Computer Fraud and Abuse Act.135 It remains to be seen whether this story will have an impact on the law of newsgathering as well as on public perceptions of journalists. WikiLeaks, launched in 2006 under the direction of Julian Assange, has released hundreds of thousands of confidential government documents relating to a wide variety of subjects, including the standard operating pro- cedures at the U.S. base at Guantanamo Bay, “the collected secret ‘bibles’ of Scientology,” and the contents of a Yahoo! account belonging to Sarah Palin. WikiLeaks has collaborated with the Guardian , the New York Times , Der Spiegel , El País , and Le Monde to publish and report on government documents.136 WikiLeaks, Assange, and a number of WikiLeaks supporters are being investigated by law enforcement officials in the United States and abroad. On March 1, 2011, the Army added twenty-two charges to the already- pending charges against Pfc. Bradley Manning, who was arrested in June 2010 on charges of disclosing classified information to WikiLeaks, including a charge under Article 104 of the Uniform Code of Military Justice for “aiding the enemy,” which is punishable by death. The prosecution has decided against recommending the death penalty for Manning.137

134. See Indu Chandrasekhar et al., Phone Hacking: Timeline of a Scandal , The Telegraph Online , available at http://www.telegraph.co.uk/news/uknews/phone-hacking/8634176/ phone-hacking-timeline-of-a-scandal.html; Holly Miller, Not Just a “Rogue Reporter”: “Phone Hacking” Scandal Spreads Far and Wide , Silha Bull. , Summer 2011. 135. Andrew Harris et al., News Corp. Phone-Hacking Accusations Probed by the FBI , Bloomberg Businessweek , July 15, 2011, available at http://www.businessweek.com/news/2011-07-15/ news-corp-phone-hacking-accusations-probed-by-the-fbi.html. 136. Associated Press, Newspapers Slam WikiLeaks’ Latest Disclosures , First Amendment Ctr. (Sept. 2, 2011), available at http://www.firstamendmentcenter.org/newspapers-slam- wikileaks%E2%80%99-latest-disclosures. 137. Patrick File, Open Government Advocates Criticize Obama’s Prosecution of Leakers , Silha Bull. , Winter/Spring 2011.

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The Department of Justice is purportedly investigating possible violations of the Espionage Act and other crimes by WikiLeaks’ supporters and Assange. On December 14, 2010, the DOJ issued a subpoena to Twitter for information on three accounts registered to or associated with WikiLeaks, and a magistrate judge upheld an order requiring the disclosure.138 The court held that the users lacked standing to challenge the order since the order requested only communication records under the Stored Commu- nications Act and not the contents of those communications. 139 The court further held that the government had met its burden to show that the subpoena “stated ‘specific and articulable’ facts sufficient to issue the order . . . [seeking] disclosures . . . ‘relevant and material’ to a legitimate law enforcement inquiry .” 140 The court also held that the order did not violate the users’ First Amendment or Fourth Amendment rights, in part because the users gave up any reasonable expectation of privacy when they used their Twitter accounts to transmit information.141 Press reports indicate that the users, supported by the ACLU and the Electronic Frontier Foundation, have appealed the magistrate’s order to the district court; another appeal challenging the sealing of the court file is also pending.142 The rights of citizens to videotape police officers performing public duties has been the subject of several cases this year. In Glik v. Cunniffe , 143 Glik was arrested for using his cell phone camera to record an arrest on Boston Commons and charged with violation of the Massachusetts wiretapping statute. A municipal court judge dismissed the charges and noted that Glik was lawfully exercising his First Amendment rights and that his cell phone use was not “secret,” as the wiretapping law required. Glik then sued the arresting officers for federal civil rights violations, and the First Circuit affirmed the denial of the officers’ motion to dismiss on qualified immunity grounds, holding that Glik’s First Amendment right to record the officers’ public performance of their duties and his Fourth Amendment right not to be arrested without probable cause were clearly established.144 Following the holding of Glik , an Illinois circuit court held the state’s two-party-consent eavesdropping statute unconstitutional as applied

138. In re § 2703(d) Order, 787 F. Supp. 2d 430 (E.D. Va. 2011). 139. Id . at 436. 140. Id . at 437. 141. Id . at 438 – 40. 142. Between January and May 2011, the Justice Department obtained similar § 2703(d) orders requiring the disclosure of IP addresses and similar communication records from Google and Sonic.net. Sonic.net unsuccessfully challenged the order, while Google has declined to comment on the proceedings. See Julia Angwin, Secret Orders Target Email , Wall St. J. , Oct. 10, 2011. 143. 655 F.3d 78 (1st Cir. 2011). 144. Id . at 85, 88.

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to audio recording of public officials performing their duties in public places.145 The court found Glik more persuasive than ACLU of Illinois v. Al- varez ,146 a district court decision dismissing for lack of standing claims that the Illinois eavesdropping statute violates the First Amendment. Alvarez is now on appeal in the Seventh Circuit.147 Another type of journalists’ civil rights claim was at issue in Lacey v. Mar- icopa County . 148 The Phoenix New Times published several articles critical of Sheriff Joe Arpaio, who requested that the Maricopa County attorney investigate whether the journalists had violated an Arizona law prohibiting dissemination of law enforcement officers’ personal information on the Internet. The county attorney ultimately appointed a special prosecutor, who issued a series of subpoenas to the newspaper in violation of Arizona law, attempted to arrange an ex parte meeting with a judge, and had two newspaper executives arrested at their homes in the middle of the night. The newspaper executives sued the county attorney, the special prosecutor, and the sheriff for a host of civil rights violations, which the district court dismissed. On appeal, the Ninth Circuit largely affirmed, but held that the special prosecutor was not entitled to qualified immunity on plaintiffs’ First Amendment, Fourth Amendment, and malicious prosecution claims.149 Newsgathering took a backseat to a discovery protective order in In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico . 150 In a brief order, the magistrate judge ordered The Daily to remove video clips of the deposition of BP CEO Tony Hayward from its website and YouTube and to return the clips to the federal district clerk’s office, finding that their posting “may be a violation of a Pretrial Order . . . which provides, in part, that ‘[n]o part of the video or audio record of a video deposition shall be released or made available to any member of the public unless authorized by the Court.’ ”151 Courts across the country continued to address the use of newer tech- nologies in the courtroom. A Connecticut superior court judge denied a

145. Illinois v. Allison, No. 2009-CF-50 (Ill. Cir. Crawford Cnty. Sept. 15, 2011). 146. No. 10 c 5235, 2011 WL 66030 (N.D. Ill. Jan. 10, 2011) (appeal argued Sept. 13, 2011). 147. See also Maryland v. Graber, No. 12-K-10-647 (Md. Cir. Ct. 2010) (dismissing wire- tap prosecution against man who recorded a police officer who stopped him for speeding); Copwatch of E. Atlanta v. City of Atlanta, City of Atlanta Res. No. 11-R-0288 (Mar. 1, 2011) (city council resolution indicating that city settled an administrative claim arising out of con- fiscation and tampering with cell phone used to record arrest, paying $40,000 and agreeing to implement a policy to prohibit police from interfering with the right to record police). 148. 649 F.3d 1118 (9th Cir. 2011). 149. Id . at 1131–35. 150. MDL No. 2179, Document 3139 (E.D. La. July 5, 2011). 151. Id . at 1.

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capital murder defendant’s request to prohibit the use of electronic media, including Twitter, in the courtroom, rejecting the argument that tweeting was “broadcasting” prohibited by the Connecticut rules.152 The court em- phasized the historic constitutional rights of the public to attend criminal trials and of the accused to be tried in public but retained the discretion to take appropriate action should the reporting activity become disruptive.153 Finally, the “hot news” doctrine continued to generate interesting decisions. In Barclays Capital Inc. v. Theflyonthewall.com , financial firms sued Theflyonthewall.com for misappropriating equity research reports and recommendations, which the website had aggregated and posted on its own subscription-based website.154 The website conceded copyright violations, and the district court further found liability for “hot news” misappropriation because the website was directly competing with the firms in providing time-sensitive information that the firms had spent large sums of money to compile.155 The Second Circuit reversed, holding that the reports did not satisfy “the ‘narrow’ ‘hot news’ misappropriation exemption” to federal copyright law preemption because the reports were the type of work covered by the Copyright Act of 1976. 156 The court characterized the website not as “free-riding” but as “breaking” the news the firms are “making.”157

vi. reporter’s privilege A. Federal Legislative Efforts and Cases Supporters of a federal shield law were given renewed hope that a federal statutory privilege will one day become law, when Rep. Mike Pence (R-Ind.) introduced the Free Flow of Information Act of 2011 in September 2011. A similar bill is expected to be introduced in the Senate. 158 Efforts to enact a federal shield law experienced significant setbacks during the 2009–10

152. State v. Komisarjevsky, No. CR07241860, 2011 Conn. Super. LEXIS 403 (Conn. Super. Feb. 22, 2011). 153. Id . at *12–13. 154. 650 F.3d 876 (2d Cir. 2011). 155. Barclays Capital Inc. v. Theflyonthewall.com, Inc., 700 F. Supp. 2d 310, 328, 335– 43 (S.D.N.Y. 2010), rev’d in part , 650 F.3d 876 (2d Cir. 2011). 156. Barclays , 650 F.3d at 897. 157. Id . at 902. In Dow Jones & Co., Inc. v. Briefing.com, Inc ., No. 10 Civ. 03321 (VM) (S.D.N.Y. 2010), Dow Jones sued Briefing.com for copyright infringement and “hot news” misappropriation, alleging that Briefing.com copied parts of more than 100 articles. The case settled with an admission of liability, payment of an undisclosed sum, and a permanent injunction. 158. J.C. Derrick, Federal Shield Law Introduced in House Once More , Reporters Comm. for Freedom of the Press (Sept. 19, 2011), available at http://www.rcfp.org/newsitems/index. php?i=12156.

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Congress, where it languished on the Senate floor after passing the House, due to concerns raised by WikiLeaks’ publication of leaked government war documents and two of the bill’s proponents having lost midterm elections.159 President Obama supports the enactment of a federal shield law—the first president to have done so. Four highly publicized federal cases present textbook examples of why a federal shield law is needed. First, Detroit Free Press reporter David Ash- enfelter has waged a seven-year battle to protect his source of information about the Justice Department’s misconduct investigation of former federal prosecutor Richard Convertino, whose convictions of three alleged ter- rorists in the first post-9/11 terrorism trial were overturned because he allegedly failed to turn over potentially exculpatory evidence to the defense. Convertino subsequently sued the Justice Department and subpoenaed Ashenfelter for the source’s identity. The Michigan court that issued the subpoena denied Ashenfelter’s privilege claim because the Sixth Circuit (which includes Michigan) does not recognize a First Amendment-based privilege to protect confidential sources,160 but the court upheld his refusal to identify his source based on the Fifth Amendment privilege against self- incrimination because Convertino claimed that Ashenfelter and the source were involved in a criminal conspiracy. 161 However, the court recently refused to dismiss the Michigan proceedings, even though the D.C. federal court granted the Justice Department summary judgment in Convertino’s suit, because Convertino has appealed that ruling.162 New York Times investigative reporter James Risen is in his fourth year163 of protecting a confidential source in connection with the criminal trial of a former CIA officer who allegedly leaked top-secret information about a botched operation to injure Iran’s nuclear program, after Risen purportedly published some of the leaked information in a book. In May 2011,

159. Rep. Rick Boucher, D-Va., and Sen. Arlen Specter, D-Pa., lost their seats in the No- vember 2010 midterm elections. 160. See Convertino v. U.S. Dep’t of Justice, No. 07-CV-13842, 2008 WL 4101347, at *4 (E.D. Mich. Aug. 28, 2008) (citing Storer Commc’ns Inc. v. Giovan ( In re Grand Jury Pro- ceedings), 810 F.2d 580 (6th Cir. 1987)). 161. Convertino v. U.S. Dep’t of Justice, No. 07-CV-13842, 2009 WL 891701 (E.D. Mich. Mar. 31, 2009); Convertino v. U.S. Dep’t of Justice, 38 Media L. Rep. (BNA) 2066 (E.D. Mich. 2010). 162. See Convertino v. U.S. Dep’t of Justice, 769 F. Supp. 2d 139 (D.D.C. 2011); Conver- tino v. U.S. Dep’t of Justice, No. 07-CV-13842 (E.D. Mich. June 10, 2011). 163. Risen originally was subpoenaed in January 2008 by a federal grand jury, but the grand jury’s term expired while the government’s motion for reconsideration of an order quashing that subpoena was pending. A subpoena issued in April 2010 also was quashed, in a ruling only recently made public, on the ground that the government had sufficient information for probable cause without Risen’s testimony. United States v. Sterling, 2011 WL 4852226, at *1–4 (E.D. Va. July 29, 2011).

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prosecutors issued a subpoena for Risen to testify in the criminal trial. On July 29, 2011, the district court granted Risen’s motion to quash in part. Applying the Fourth Circuit’s LaRouche v. National Broadcasting Co., Inc . balancing test,164 the court concluded that Risen’s need to protect his confidential source outweighed the government’s need for the source’s identity but agreed that Risen should testify to authenticate his reporting and confirm that the information was received from a confidential source. 165 After the defendant filed papers identifying someone else as the leak, the government moved for reconsideration, arguing that the defense’s plan to blame someone else heightened its need for the identity of Risen’s source, which the court denied.166 In the third case, big business accomplished what the government did not. In July 2010, the Second Circuit limited but upheld a subpoena for outtakes from a documentary about an Ecuadoran lawsuit against Chev- ron Corp. over pollution of the Amazon River, without explanation. 167 In its decision issued in January 2011, the court explained that it upheld the turnover order because the documentary filmmaker lost his journalistic in- dependence after the plaintiffs’ lawyer solicited him to make the film from the plaintiffs’ perspective, and because he admittedly removed at least one scene from the final program at the request of the plaintiffs’ attorney.168

164. 780 F.2d 1134 (4th Cir. 1986). 165. Sterling , 2011 WL 4852226, at *13. The court ruled that Risen need only testify as to the accuracy of his reporting, subject to a protective order. Although the court did not mention Ashenfelter’s invocation of the Fifth Amendment under similar circumstances, it did note that, if Risen testified as to the identity of his source, such testimony would go against his pe- nal interest because the unauthorized receipt of classified information is a federal felony. The court also noted that the government had offered Risen immunity in an attempt to forestall a possible Fifth Amendment claim. Id . at *11 n.6. Additionally, a motion filed by the defendant revealed that the government had collected evidence of telephone calls, e-mails, and meetings between Risen and Sterling; testimony from third parties about Risen’s conversations with them; and other evidence of his activities, including credit card and bank records and records of Risen’s airline travel, all gathered without Risen’s knowledge. Id . at *10. 166. United States v. Sterling, Docket No. 1:10-cr-00485-LMB, Document 261 (E.D. Va. Oct. 12, 2011). 167. Chevron Corp. v. Berlinger LLC, Docket No. 10-1918, Document 277 (2d Cir. July 15, 2010). 168. Chevron Corp. v. Berlinger, 629 F.3d 297, 308 – 09 (2d Cir. 2011). More importantly, perhaps, the release of the outtakes had a profound effect on the results of the lawsuit between the Honduran plaintiffs and Chevron. On March 7, 2011, based on outtakes that the court characterized as showing that the plaintiffs’ attorney had threatened and pressured the Ecua- doran judges, a New York district court judge granted a preliminary injunction preventing the plaintiffs from collecting the $8.6 billion judgment awarded to them by the Ecuadoran court. Chevron v. Donzinger, 11 Civ. 0691, 2011 U.S. Dist. LEXIS 22729 (S.D.N.Y. Mar. 7, 2011). Because Chevron has no assets in Ecuador, the injunction preventing the plaintiffs from collecting the judgment from assets in the United States could mean that they will not be able to collect at all. Geoff Pipoly, Second Circuit Rationale for Denying Privilege to Filmmaker: Failure to Maintain Innocence , 16 Silha Bull., Winter/Spring 2011.

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Finally, in United States v. Treacy , the Second Circuit held that restrict- ing a criminal defendant’s cross-examination of a reporter violated the defendant’s constitutional right to confront the witnesses against him.169 Because no confidential sources or materials were at issue and the source of the privilege involved was the federal common law rather than the First Amendment, the Second Circuit applied the lower standard applicable to nonconfidential materials—i.e., that the testimony was “of likely relevance to a significant issue” and not reasonably obtainable elsewhere—and concluded that attempts to test the reporter’s memory as to specific details of his testimony were “of likely relevance to a significant issue” in the case.170 However, the court found that the error was harmless and upheld the defendant’s conviction.171 B. State Legislation and Cases West Virginia became the fortieth state to enact a shield law in April 2011.172 The law gives “reporters” a nearly absolute privilege as to both confidential sources and documents, except “to prevent imminent death, serious bodily injury or unjust incarceration.”173 It applies to anyone who gathers and disseminates news to the public for a portion of the person’s livelihood, as well as unpaid student journalists, and does not limit its protection to any specific type of media.174 Hawaii and Arkansas both extended existing shield laws. Hawaii’s statute was extended until 2013, but with a sunset clause. 175 Arkansas extended its statute to television and Internet reporters, thereby codifying a federal court decision holding that the prior provision covered television reporters.176 In the last chapter of a previously reported case, Too Much Media v. Hale ,177 the New Jersey Supreme Court rejected additional requirements

169. 639 F.3d 32 (2d Cir. 2011). Attorneys were permitted to question Wall Street Journal reporter Charles Forelle only about three statements attributed to the defendant in a Wall Street Journal article, and could not impeach that testimony with other communications between the reporter and the defendant. Id . at 38–39. 170. Id . at 42. 171. Id . at 45. 172. W. Va. Code § 57-3-10 (2011). The District of Columbia also has a shield law. D.C. Code . §§ 16-4701– 4704 (2011). 173. W. Va. Code § 57-3-10(b). 174. W. Va. Code § 57-3-10(a). The statute also mandates that existing protections afforded journalists and others under the federal and West Virginia Constitutions remain intact, W. Va. Code § 57-3-10(c), thereby retaining the state supreme court’s articulation of a qualified constitutional privilege in State ex. rel. Hudok v. Henry , 389 S.E.2d 188 (W. Va. 1989), which, unlike the statute, protects newsgathering materials as well as confidential sources. 175. Haw. Rev. Stat . § 621 (2011). 176. Ark. Code Ann. § 16-85-510 (2011). 177. 20 A.3d 364 (N.J. 2011).

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the state appellate court would have grafted onto the state’s shield law. The court upheld the lower court decisions that a person who posts comments on an online message board does not qualify for the statute’s protection, however, based on statutory language providing protection only to publi- cations “similar” to traditional media.178 Commentators who post on message boards, the court said, are not “similar” to traditional media but rather to writers of letters to the editor.179 An Illinois judge held that, although the state’s shield law covers student journalists, students investigating a thirty-three-year-old murder case for Northwestern University’s Innocence Project had to give police more than 500 e-mail messages to their journalism professor because they were acting as “investigators in a criminal proceeding” by working with the convict’s defense attorney.180

vii. insurance A. Defamation 1. Recent Developments Regarding Intentional Acts Exclusions Intentional acts exclusions were at the heart of two cases reported this year. In Hale v. State Farm Florida Insurance Co ., the Florida District Court of Ap- peals ruled that the intentional acts exclusion did not relieve the umbrella carrier of the duty to defend. 181 The plaintiffs, Barbara Hale and Sandra Segal, were sued by their sister-in-law, alleging defamation and tortious interference with contract and that Hale and Segal had “knowingly and/or negligently” made false statements about the plaintiff to various third parties.182 The appellate court noted that the policy specifically included defamation in the definition of “personal injury,” which was covered. 183 While the policy did not provide cover for intentional acts, the court concluded that negligence was pleaded in the complaint, so State Farm was obligated to defend the action per the policy’s terms.184 A North Carolina appellate court reached a similar conclusion in Kubit v. MAG Mutual Insurance Co . 185 A former member of the insured anesthe- siology clinic had alleged defamation, tortious interference, intentional or

178. Id . at 378. 179. Id . at 379. 180. J.C. Derrick, Student Journalists’ Email Must Be Turned over to State , Reporters Comm. for Freedom of the Press (Sept. 9, 2011), available at http://www.rcfp.org/newsitems/index. php?i=12142. 181. 51 So. 3d 1169, 1171 (Fla. Dist. Ct. App. 2010). 182. Id . at 1170. Segal was sued individually for civil assault and civil battery. 183. Id . at 1171. 184. Id . at 1170. 185. 708 S.E.2d 138 (N.C. Ct. App. 2011).

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negligent infliction of emotional distress, unfair or deceptive trade practices, and various “conspiratorial acts” designed to interfere with the former member’s practice.186 The appellate court agreed with the carriers that the negligent misrepresentation count did not trigger the duty to defend because it fell within the “intentional acts” exclusion; because the underlying complaint alleged a “systematic and intentional course of conduct” with the purpose of harming the underlying plaintiff’s employment pros- pects, the negligent misrepresentation count in effect relabeled intentional conduct as negligence, and thus did not by itself trigger the carrier’s duty to defend.187 However, the court held that the complaint’s defamation claim triggered the duty to defend because “personal injury” coverage under the policy included defamation claims, and the intentional acts exclusion did not apply because the complaint did not allege knowledge of falsity on the part of the plaintiffs (and in fact alleged negligence within the context of the defamation claim).188 The court also rejected the argument of one carrier that the complaint failed to allege that the defamatory statement occurred within its policy period, and so did not trigger coverage and likewise fell within its “prior publication” exclusion.189 The court disposed of the first argument by observing that the complaint alleged that the defamatory statements continued up until the date of filing, when Cincinnati was on cover.190 Concerning the prior publication exclusion, the court noted that for the exclusion to operate, the continuous utterance must repeat “substantially the same” tortious statements. Because the burden rested on Cincinnati to show that the statements were substantially the same and the complaint was silent on that point, the court ruled that the carrier had a duty to defend and overturned the trial court.191 2. Defamation May Only Be Inferred for Purposes of Coverage When the Elements Are Alleged in the Complaint In Billings v. Commerce Insurance Co ., the insured had been sued for intentional infliction of emotional distress resulting from the “spreading of rumors” that the plaintiffs planned to destroy wetlands within the context of a planned real estate development, and the court thus framed the question

186. Id . at 143. 187. Id . at 148– 49. The court looked to its decision in State Auto Insurance Cos. v. McClam- roch , 497 S.E.2d 439, 443 (N.C. Ct. App. 1998), for guidance, which held that “an intent to injure ‘may be inferred where the act is substantially certain to result in injury.’ ” 188. Kubit , 708 S.E.2d at 149–50. 189. Id . at 150 –51. 190. Id . at 151. 191. Id . at 151–52 (citing Ringler Assocs. v. Md. Cas. Co., 80 Cal. App. 4th 1165, 1183, 96 Cal. Rptr. 2d 136, 150 –51 (2000)).

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as whether the “spreading of rumors” was sufficient to plead a cause of action for defamation, a covered peril under the policy.192 The court held that allegations relating to a claim for intentional infliction of emotional distress, read with a defamation count, recited the elements of a defamation claim and were therefore adequately pleaded to fall within coverage of a personal umbrella policy.193 The Tenth Circuit reached the opposite conclusion in Novell, Inc. v. Vig- ilant Insurance Co . 194 The underlying dispute related to comments by the insured about the relative strength of the underlying plaintiff’s copyright ownership in operating system software. The carrier denied a defense, claiming that the allegations did not constitute “personal injury” under the policy.195 The court rejected the insured’s argument that, while the tort of slander of title was not an enumerated peril, defamation could be inferred from the allegations of the complaint because they questioned the underlying plaintiff’s honesty, resulting in reputational harm.196 B. Media: Content of Labeling and Marketing Is Not Loss Arising from Creation or Dissemination of Advertising Material Relating to Covered Media for Purposes of Media Wrongful Acts Coverage In Welch Foods, Inc. v. National Union Fire Insurance Co ., the court held that media wrongful acts coverage did not apply. Welch had been accused of false labeling and advertisement on its pomegranate juice labels, and the policy at issue provided coverage for “all Loss arising from any Claim for a Media Wrongful Act.”197 The policy defined “Media Wrongful Act” as any actual or alleged act, error or omission when committed or allegedly committed by an Insured . . . in connection with the creation or dissemination of the Covered Media, or in connection with the creation or dissemination of Advertising Material relating to the Covered Media, including but not limited to any of the following: [] disparagement, or any other form of defamation or harm to the character or reputation of any . . . entity; misappropriation of . . . information or ideas; error or omission in [c]ontent . . . .198

192. 936 N.E.2d 408, 410 –11 (Mass. 2010). 193. Id . at 415. The court, however, ultimately concluded that the rumors at issue were in reality disseminated prior to policy issuance, and so granted the carrier’s motion for summary judgment, concluding there was no duty to defend. Id . at 416 –18. 194. 421 F. App’x 872 (10th Cir. 2011). 195. Id . at 874. 196. Id . at 875. The court noted that the Utah Supreme Court has ruled that slander of title is not of the same species as defamation because it is not a personal tort and is not designed to protect the reputation of a defendant. Id . at 875 (citing Bass v. Planned Mgmt. Servs., Inc., 761 P.2d 566, 568 (Utah 1988)). 197. 2010 WL 3928704, at *1, 4 (D. Mass. Oct. 1, 2010). 198. Id . at *4.

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“Covered Media” and “Content” were broadly defined to include Inter- net content.199 First, the court held that the false advertising allegations did not arise from “errors or omissions in content . . . in connection with the creation or dissemination of ” Welch’s advertising material, but rather only from the content of the material. 200 Second, the court determined that the underlying complaints did not claim “disparagement, or any other form of defamation or harm to the character or reputation,” as the ads did not mention competitors.201 Finally, the court found that the underlying complaints did not involve “misappropriation of information or ideas,” such as a competitor’s advertising idea.202 The court reasoned that “the phrase ‘advertising idea’ relates to the manner in which one advertises its goods” and does not include the content of such advertisements, such as Welch’s claim that pomegranate juice is an ingredient in its juice (with the attendant implica- tion that Welch’s product has salutary health effects).203 Rather, any coverage was limited to Welch’s use, in its advertisements, of its competitor’s ideas about how to solicit business and customers.204 C. Privacy 1. Developments in Liability Coverage for Fax Blasting Claims Courts across the nation continued to parse out whether and to what extent there is insurance coverage for “fax blasting” violations of the Telephone Consumer Protection Act (TCPA)205 under liability policy provisions cov- ering “oral or written publication of material that violates a person’s right of privacy” typically found in personal and advertising injury coverages or, alternatively, as “property damage” caused by an “occurrence.” In Maxum Indemnity Co. v. Eclipse Manufacturing Co ., the U.S. District Court for the Northern District of Illinois held that any potential coverage under commercial general liability (“CGL”) policies providing coverage for “oral or written publication of material that violates a person’s right of privacy” was limited to TCPA claims asserted by individuals not associated with a business entity. 206 The case involved three insurance carriers

199. Id . 200. Id . (emphasis added). 201. Id . 202. Id . at *5. 203. Id . at *4. 204. Id . at *4 –5 (citing Accessories Biz, Inc. v. Linda & Jay Keane, Inc., 533 F. Supp. 2d 381, 387 (S.D.N.Y. 2008); Cont’l Cas. v. Consol. Graphics, Inc., 656 F. Supp. 2d 650, 658–59 (S.D. Tex. 2009)). 205. 47 U.S.C. § 227. 206. 2011 WL 2415629 (N.D. Ill. June 13, 2011) (holding that TCPA claims were not covered “property damage” caused by an “occurrence” that was not expected or intended from the standpoint of the insured).

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and an underlying TCPA class action. Two of the carriers’ CGL policies provided coverage for invasion of privacy as an advertising injury offense, and they argued that Illinois precedent finding coverage for TCPA claims did not apply because businesses, unlike individuals, do not have privacy interests in seclusion.207 The court agreed but held that the two carriers had a duty to defend because it was not clear that the underlying class was composed solely of business entities. 208 The court held that additional discovery would be necessary regarding the class members to determine the two carriers’ indemnity obligations.209 In Harford Mutual Insurance Companies v. Agean, Inc ., a federal district court applying North Carolina law denied a carrier’s motion for judgment on the pleadings under both the advertising injury and property damage provisions of certain CGL policies. 210 With respect to coverage under the “advertising injury” offense of “oral or written publication of material that violates a person’s right of privacy,” the court held that Resource Bank- shares211 did not overrule Prime TV , 212 such that under North Carolina law there was a potential for coverage for TCPA claims sufficient to trigger a carrier’s defense obligation.213 The opinion in Pennsylvania National Insurance Co. v. Group C Communi- cations, Inc ., addresses coverage for an underlying TCPA class action under a primary businessowners’ liability policy and a commercial umbrella policy issued to a business categorized as “Offices—Advertising” in the policy declarations.214 The primary policy excluded coverage for advertising injury arising out of “[a]n offense committed by an insured whose business is advertising, broadcasting, publishing or telecasting.” The court found this exclusion unambiguous under New Jersey law and held that whether the insured’s “primary, essential, chief or principal” business was “advertising, broadcasting, publishing or telecasting” at the relevant time should be made by the finder of fact, not in a motion for summary judgment. 215 Relating to the umbrella policy, the court held that property damage coverage was not excluded by the publisher’s liability exclusion, which barred coverage for “invasion of privacy” resulting from “dissemination of any

207. Id . at *7. 208. Id . at *8. 209. Id . at *9. 210. 2011 WL 2295036 (M.D.N.C. June 8, 2011). 211. Resource Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631 (4th Cir. 2005) (analyzing an insurance contract under Virginia law). 212. Prime TV, LLC v. Travelers Ins. Co., 223 F. Supp. 2d 744, 750 (M.D.N.C. 2002) (construing a similar insurance policy under North Carolina law). 213. Agean , 2011 WL 2295036, at *6 (also holding alleged TCPA violations are covered “property damage” caused by an “occurrence”). 214. 2011 WL 3241491 (N.J. Super. Aug. 1, 2011). 215. Id . at *8.

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matter published or printed by the insured or other person for whom the insured is legally responsible.”216 However, there was an exception to the exclusion for “advertising by or on behalf of the insured for the purpose of promoting its own business,” and it was undisputed that the broadcast facsimile promoted the insured’s own business.217 2. Alleged Acts of Sexual Harassment Not Covered Privacy, Slander, or Defamation In Shanahan v. State Farm General Insurance Co ., the court denied coverage under an umbrella policy for claims of false imprisonment, wrongful detention, slander, defamation of character, and invasion of privacy.218 The complaint alleged that the insured grabbed his employee’s buttocks in the presence of others, made comments about her body, and suggested she engage in sexual intercourse with him. 219 The relevant policy definition included injuries caused by “false arrest, false imprisonment, . . . libel, slander, defamation of character or invasion of rights of privacy,” and the policy excluded “any loss caused by illegal discrimination” or any “willful and malicious act.” 220 The court rejected the insured’s argument that the allegations could support a covered claim for slander because deposition testimony indicated that either no one was present during these alleged acts or they did not occur—either way, there was no publication. 221 The court also rejected the insured’s argument that the claims were for invasion of privacy, stating that California law does not support the proposition that pressuring an individual to leave his or her spouse or sending flowers to an employee’s home constitutes an invasion of privacy.222

216. Id . at *10. 217. Id . 218. 193 Cal. App. 4th 780 (2011). 219. Id . at 789. 220. Id . at 787. 221. Id . at 789. 222. Id . at 787.

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