5

Torts of a Personal Nature

Background

Former employee, who had been escorted around workplace by a security guard during his former employer’s investigation into alleged accounting irregularities, brought action against former employer and superiors, alleging false imprisonment and defamation. After jury found in favor of former employee on both claims, the Superior Court Department, Suffolk County, allowed former employer’s Motion for Judgment Notwithstanding the verdict on the defamation claim. Former employee appealed. The appeals court reversed and remanded with instructions.

Holding

The supreme judicial court held that former employee’s belief that his coworkers viewed him in a defamatory light was insufficient to establish defamatory publication.

Judgment of the superior court affirmed.

This case arises from a July 10, 1998, investigation by Filene’s, a division of the May Department Stores Company, into allegations that Michael Phelan was attempting to hide significant accounting discrepancies from his superiors. Phelan brought an action against May, Michael Geraghty (Filene’s chief financial officer), and Donald Lane (Filene’s controller) (collectively, the defendants), alleging that their conduct during the investigation had constituted false imprisonment and defamation. A jury found in favor of Phelan on both claims and awarded him damages of $1,500 for false imprisonment and $75,000 for defamation. With respect to Phelan’s defamation claim, the defendants moved for judgment notwithstanding the verdict (judgment n.o.v.), contending that Phelan had produced insufficient evidence on which a jury reasonably could have found either (1) the conduct alleged had defamatory significance to those witnessing it; or (2) the defendants had lost their conditional privilege to publish arguably defamatory material about Phelan. The superior court allowed the motion for judgment n.o.v., doubting that Phelan had set forth sufficient evidence of publication and concluding that he had failed to overcome the defendants’ conditional privilege.

Based on the testimony at trial, the jury could have found the following facts. Phelan was employed as assistant director of accounts payable for Filene’s where, among other tasks, he was responsible for managing “vendor violations” and the related budget. Vendor violations occurred when vendors failed to comply with Filene’s shipping or purchase order requirements, and Filene’s imposed a charge on them to cover the additional costs. To challenge an imposed charge, a vendor would submit to Filene’s a “vendor violations package,” addressing why the charge was unjustified and requesting a refund. This package would be processed by Phelan’s department, and if it was determined that the charge had been improperly assessed, the vendor would receive a repayment.

In 1997, Geraghty directed Phelan to pay “prior year invoices” (PYIs) from the vendor violations budget, notwithstanding the fact that severe fiscal problems had arisen in the past from this practice. Phelan and his direct supervisor, Catherine Rooney, warned Geraghty and Lane that this practice was ill advised, in that it hindered their ability to make timely repayments to deserving vendors and to meet budgetary goals. Nonetheless, Phelan was not instructed to stop this practice.

During this time, unbeknownst to Phelan, a backlog of vendor violations packages had begun to accumulate in the hands of Phelan’s subordinate, Geoffrey Meade, who was in charge of evaluating these packages. In early July 1998, Meade finally told Phelan about the backlog, indicating that the amount due to vendors was approximately $200,000. Phelan and Rooney promptly notified their supervisor, Michael Basler, who was Filene’s assistant controller. As it turned out, the problem was significantly greater than Phelan had been led to believe; Meade reported to Basler that the backlogs and unpaid PYIs totaled $491,995. Meade attempted to shred his backlog of vendor violations packages, but the documents were ultimately retrieved.

At this juncture, Geraghty, Lane, and Basler decided to conduct an investigation and audit of the vendor violations program. On the morning of July 10, 1998, Lane interviewed Phelan as to alleged accounting irregularities and then directed him to Basler’s office. Lane instructed a Filene’s security officer, Johnny Guante, to guard Phelan, purportedly so that Phelan would not “influence” or “intimidate” his subordinates, who were being questioned as part of the investigation. Phelan was not permitted to use the telephone. Throughout the day, Guante relocated Phelan to various available offices and conference rooms, escorted him to the restroom, and accompanied him to the cafeteria. Coworkers did not speak with Phelan as he was moving about the building with Guante. Although Guante did not wear a badge or other insignia that identified him as a security guard, and did not carry a weapon or handcuffs, he did wear dark trousers, a shirt, a tie, and a blazer that Filene’s had issued to him and that was similar to the clothing worn by other security guards in the store. Phelan felt embarrassed and humiliated because of his observation that, everywhere they went, coworkers were staring at him while he was in the company of security personnel. At the end of the day, Phelan was returned to Basler’s office, was informed that he was being suspended, and was escorted out of the building by another Filene’s executive. Phelan’s employment with Filene’s subsequently was terminated.

To prevail on his defamation claim, Phelan had to establish that the defendants published a false statement about him to a third party that either caused him economic loss or was of the type that is actionable without proof of economic loss. A false statement that “would tend to hold the plaintiff up to scorn, hatred, ridicule, or contempt, in the minds of any considerable and respectable segment in the community,” would be considered defamatory, and the imputation of a crime is defamatory per se, requiring no proof of special damages. The element of publication is satisfied where the defamatory communication is transmitted to even one person other than the plaintiff.

The defendants contend that they were properly entitled to judgment n.o.v. on Phelan’s defamation claim because their conduct did not convey a clear and unambiguous false statement about Phelan and, in the absence of evidence that an observer interpreted the defendants’ conduct as conveying such a meaning, Phelan has failed to establish defamatory publication. We agree.

A threshold issue in a defamation action, whether a communication is reasonably susceptible of a defamatory meaning, is a question of law for the court (court decides whether communication is capable of particular meaning and whether such meaning is defamatory). However, “where the communication is susceptible of both a defamatory and non-defamatory meaning, a question of fact exists for the jury” (jury decides “whether a communication, capable of a defamatory meaning, was so understood by its recipient”).

When assessing the import of physical acts, which are at issue here, rather than written or spoken words, this objective test is equally applicable. Although not explicitly recognized in prior Massachusetts case law, we conclude that defamatory publication may result from the physical actions of a defendant, in the absence of written or spoken communication. “The word communication is used to denote the fact that one person has brought an idea to the perception of another.” The meaning of communication, “whether by written or spoken words or otherwise,” is that which recipient understands it to convey. Defamation requires “a communication, defined as conduct that brings an idea to the perception of others.” “An individual’s actions, separate from any written or spoken statements, may be sufficient grounds for a jury to find a cause of action [for defamation].”

Even viewing the evidence in the light most favorable to Phelan, as we must, the defendants’ conduct was ambiguous and open to various interpretations. The actions of Guante in escorting Phelan about the office on July 10, and in relocating him to various conference rooms, did not have a specific, obvious meaning and did not necessarily convey that Phelan had engaged in criminal wrongdoing. There was no chasing, grabbing, restraining, or searching such as would have conveyed a clear and commonly understood meaning. From the mere fact that he was being accompanied by a security guard, observers could have thought, for example, that the defendants were sequestering Phelan so that he could not communicate with others, or so that he could provide confidential assistance with their investigation. Where Guante’s communication, through physical action, was ambiguous, it was for the jury to decide whether such communication was understood by Phelan’s coworkers as having a defamatory meaning.

Phelan had the burden of proving that a reasonable third person observing Guante’s conduct would have understood it to be defamatory.

Phelan presented no such evidence to satisfy his burden of proof. He testified that he was embarrassed and humiliated by the defendants because other employees stared at him in the company of Guante. However, Phelan’s own belief that others viewed him in a defamatory light, without more, was insufficient to establish defamatory publication. In other words, Phelan was not competent to testify as to his coworkers’ interpretation of Guante’s actions and whether, as a result of what they saw, they viewed Phelan with scorn, hatred, ridicule, or contempt. Publication to Phelan cannot be substituted for publication to a third party. To satisfy his burden of proof, Phelan needed to present testimony from at least one coworker who observed Guante’s actions and interpreted such actions as defamatory. Where purported slander made by expressions and gestures, and not solely by words, it was necessary to inquire of witnesses what they understood defendant to mean both as to person intended and charge made against him. Because he failed to do so, we conclude that he did not establish the essential elements of defamation.

In light of our conclusion, we need not consider whether the defendants’ conduct was protected by an employer’s conditional privilege to publish defamatory material where the publication is reasonably necessary to the protection or furtherance of a legitimate business interest.

The judgment notwithstanding the verdict is affirmed.

CASE COMMENT

This case illustrates the issues surrounding publication by a “physical act.” Here the physical act was being escorted by security personnel. The plaintiff asserted that this act exposed him to ridicule, scorn, and contempt. He tried to make this assertion because coworkers were “staring” at him as he was being escorted by security. The court found this insufficient evidence of defamation. This cause of action failed because the plaintiff did not obtain testimony from his coworkers to make the connection between the physical act and the defamatory ridicule. In order to make this connection, the coworkers would need to testify that the act caused them to think in certain ways about the plaintiff (i.e., in ridicule, scorn, or contempt). Because the physical act could be viewed in a neutral or even positive light, the actual perception of the coworkers who witnessed the escort was required to complete the elements of defamation.

Background

Former employee brought action against former employer and company that provided report to former employer purportedly showing that former employee had falsified employment application, alleging claims for negligence, defamation, libel, and slander. The court, DeKalb County, granted company summary judgment. Former employee appealed.

Holdings

The court of appeals held that:

1. Criminal background check of former employee, which stated that former employee “may or may not have” been convicted of a felony within the past five years while using an alias, fell within intra-corporate exception to publication rule, and

2. Assistant manager’s disclosure to employee that former employee was terminated after giving false information on his employment application and because he had committed a felony-child molestation was privileged.

Affirmed

McClesky applied for employment with Home Depot in August 1999. In his employment application, McClesky indicated that he had not been convicted of a felony or misdemeanor within the past five years. Home Depot hired McClesky. As part of the hiring process, McClesky signed a consent form, permitting Home Depot and its agent to perform a background check. This consent form provided, in pertinent part, that McClesky “released Home Depot and/or its agents and any person or entity, which provides information pursuant to this authorization, from any and all liabilities, claims or lawsuits in regard to the information obtained from any and all of the above referenced sources used.” In October 2000, Home Deport requested that Vericon conduct a criminal background search on McClesky. A third party actually conducted the investigation. After receiving the report, Vericon faxed the results of the investigation to Home Depot on November 13, 2000. The report suggested that McClesky had used the name Edward James Sims, Jr., as an alias and that Sims had been convicted for several crimes in 1998.

On November 16, 2000, Home Depot terminated McClesky for falsifying his employment application. According to McClesky, he never used Edward James Sims as an alias and did not commit the crimes referred to in the report.

McClesky contends that the trial court erred in granting summary judgment to defendants on his claims for libel and slander, asserting that the release did not bar these claims because defendants were grossly negligent and acted with malice. The following are pertinent to the resolution of these contentions: McClesky was terminated at a meeting attended by Ricky Jordan, the manager at the store where McClesky worked, William Gonzalez, an assistant manager in the lumber area where McClesky worked, and Carla Brown, a Home Depot loss prevention supervisor. Jordan, as the store manager, had the responsibility for terminating employees at that Home Depot store and organized the meeting.

During the meeting, Jordan informed McClesky that he was being terminated for falsifying his employment application when he stated he had not been convicted of a felony in the past five years. McClesky denied that he had been convicted of a felony during that time, although he admitted being on probation for a crime committed outside the five-year period. Brown then listed the crimes on the background report that Sims was reported to have committed within the last five years. McClesky denied having committed those crimes, and said the report was in error. McClesky was nevertheless terminated and given separation paperwork showing that he was being terminated for falsification of company records. McClesky testified in his deposition that he was escorted from the meeting and the premises by a man wearing a Home Depot shirt who was also in attendance at the meeting. According to McClesky, that man did not work at the Home Depot store where he worked. Although Gonzalez recalled that another person was in the meeting, he testified in his deposition that he did not know this person, and could not recall if he took part in any of the discussions with McClesky. Gonzalez subsequently filed an affidavit stating that although it was still his testimony that he did not know the other person who attended the meeting, he could identify the person as working in the Home Depot loss prevention department. Gonzalez also averred that it was not unusual to have personnel from that department attend termination meetings when there were issues concerning employee falsification or security.

After the meeting, Jordan, Gonzalez and Brown stayed behind to discuss the meeting and Brown told the other two that they should respond to inquiries from other store employees about McClesky’s termination by saying that he was “no longer with us and leave it at that.”

Based on these facts, the trial court found that summary judgment for defendants was appropriate because the evidence showed there had been no publication. We agree.

Publication is indispensable to recover for slander. Generally, publication is accomplished by communication of the slander to anyone other than the person slandered. Over the years, however, an exception to the broad definition of publication has evolved: when the communication is intra-corporate, or between members of unincorporated groups or associations, and is heard by one who, because of his/her duty or authority has reason to receive information, there is no publication of the allegedly slanderous material, and without publication, there is no cause of action for slander.

Thus, the relevant question is whether, because of their duty or authority, the persons attending the termination meeting had reason to receive the information disseminated during that meeting. It is clear that Jordan, Gonzalez and Brown had such authority, and McClesky does not contend otherwise. McClesky, however, focuses on the presence of the other Home Depot employee who has never been identified by name. However, that person was identified as a Home Depot loss prevention supervisor and evidence was presented that personnel from that department attend termination meetings when issues relating to employee falsification or security are of concern, such as was the situation here. And McClesky’s own testimony establishes that this person was there for security reasons since he escorted McClesky off the premises once the meeting ended and McClesky had been terminated. The fact that, as McClesky repeatedly points out, this person did not work at the Home Depot store where McClesky worked does nothing to advance McClesky’s argument that the person did not have the requisite authority to receive the information. Brown was also a loss prevention supervisor who did not work in the store where McClesky was employed, and yet her authority to attend the meeting is not disputed. The trial court did not err in granting summary judgment on this basis.

McClesky also contends summary judgment to the defendants was precluded because the facts show that Jordan and Gonzalez told Home Depot employee Jonathon Erhorn that McClesky was terminated for giving false information on his employment application and that he had committed a felony—child molestation. The record shows that Erhorn was a friend of McClesky’s and they worked in the lumber department together. Although Erhorn testified in his deposition that he “never really considered [him]self as a supervisor” and that he “was just a lumber associate that was curious and asked a question” he also testified that he acted as the “lead lumber person” or “backup supervisor” and was “second in charge behind [the lumber department supervisor] Greg Simon.” The record also shows that Erhorn was told about the circumstances surrounding McClesky’s termination only after he questioned Gonzalez about McClesky’s absence.

According to Erhorn, he initially questioned Gonzalez because McClesky was scheduled to come in at a critical time. Gonzalez at first told Erhorn simply that McClesky had been terminated and that he could not tell him why. Erhorn let it drop at that time, but then called Gonzalez later in the day because “I really wanted to know why he left ... why he was fired. He was a hard worker, and I don’t see how he could have got fired.” At that time Gonzalez instructed Erhorn to come to the conference room, and both Jordan and Gonzalez were there when he arrived. Jordan told Erhorn that “whatever was said in that room [had to] stay in that room,” and Gonzalez told Erhorn that McClesky was fired because he had been convicted of a felony—child molestation. Erhorn testified in his deposition that he felt like Jordan was trying to act as a mediator during the meeting and that “Jordan didn’t want me to leave Home Depot just because whenever [McClesky] leaves is going to put more work on [me] and Greg Simon.” Erhorn also testified that he talked to McClesky several weeks later and that McClesky “told [him] the exact thing that [Gonzalez] told [him] ... that he was fired from Home Depot because he had a prior conviction of child molestation.”

Pretermitting whether summary judgment was proper because the statements were unpublished, we agree that summary judgment was proper for the additional reason stated by the trial court.

OCGA Section 51-5-7 provides that statements made in the good faith performance of a public or private duty are privileged, unless, as provided in OCGA Section 51-5-9, “the privilege is used merely as a cloak for venting private malice.” “To make the defense of privilege complete, in an action for slander, or libel, good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear.”

We find the analysis in Jones to be controlling here. In Jones, the plaintiffs were terminated for the stated reason that they had sold drugs on the employer’s premises. Another employee who was friends with plaintiffs questioned a security guard about the termination, and, according to the employee, the guard told him that plaintiffs had been fired for selling narcotics on the premises. Plaintiffs, however, denied that they had ever sold drugs, and contended that they were fired in retaliation for their union organizing activities.

In concluding that the statement, even if made, was privileged, this court first noted that “statements made in response to inquires as to another person are deemed privileged when the inquirer is one naturally interested in his welfare.” The Court then went on to note that a qualified privilege also exists in those cases involving an employer’s disclosure of the reasons concerning an employee discharge to fellow employees “where the disclosure is limited to those employees who have a need to know by virtue of the nature of their duties (such as supervisors, management officials, ... etc.) and those employees who are otherwise directly affected... by the discharged employee’s termination....”

In Jones, we considered the following facts to be pertinent: the employee who made the inquiry was more than “a ‘fellow general employee,’ for not only did he work directly with the appellants on a day-to-day basis, he was a close personal friend as well.... It is also undisputed that [the] alleged disclosure to [the coworker] came in direct response to [the coworker’s] inquiry and outside the presence of other persons.” Clearly, the same circumstances exist here. Erhorn and McClesky were friends and worked closely together. Erhorn initiated the inquiry concerning why McClesky was not at work, and persisted in knowing why McClesky was fired. Erhorn had good reason to question his absence since Erhorn’s ability to get his work done was directly affected. Erhorn was taken into a private room and told of the circumstances of the termination, and specifically instructed that what was said was to remain confidential. Under these facts, we have little hesitancy in concluding that “the alleged disclosure must ... be considered privileged as a matter of law, and it follows that the trial court did not err in granting the [defendants’] Motion for Summary Judgment.”

CASE COMMENT

This case illustrates two aspects of a defamation action. First, the plaintiff contends that certain individuals who participated in the termination meeting had no reason for being there. In this way, individuals who did not have a “need to know” were exposed to the reasons for his termination. Second, the plaintiff contends that the company communicated information about the reason for his termination to another co-worker. The court rejected both contentions. As to the first, the court found that the fact an individual who was not assigned to the particular store was present in the termination meeting was to no avail. As to the second contention, the court found that the communication was privileged due to the purpose and manner in which the information was conveyed.

Background

Contract security officer brought action alleging that employee of federal agency defamed her.

Holdings

The district court held that:

2. Officer did not show that employee acted out of personal motives or malice.

Motion granted

This action arises out of a defamation suit brought by Ana Asto against John Mirandona and other unnamed defendants in New York State Supreme Court based on events occurring at John F. Kennedy International Airport on January 28–29, 2002.

Mirandona is the Port Director at JFK for the United States Customs and Border Protection division of the Department of Homeland Security, formerly the Immigration and Naturalization Service. As Port Director, Mirandona is responsible for the inspection and admission of all foreign passengers traveling through JFK. In January 2002, Mirandona supervised approximately 500 INS employees and contract security officers from Wackenhut Correction Facility who worked in the Federal Inspection Service area at JFK. At the time of the events giving rise to this suit, plaintiff was a Wackenhut employee stationed in the FIS in the Secondary Inspections area. Plaintiff was usually partnered with fellow Wackenhut employee Thomas Kavanaugh on her duties.

In response to complaints from detained aliens at JFK that personal items had been stolen from their luggage during their inspections, the Office of the Inspector General within the U.S. Department of Justice (“OIG”) conducted an undercover operation on January 28, 2002. Due to the fact that the complainants were detained while plaintiff and Kavanaugh were on duty, and because plaintiff was specifically named by one of the complainants, the OIG conducted its undercover operation while plaintiff and Kavanaugh were working. During the operation, in which an undercover agent posed as a detainee, Kavanaugh was observed entering the baggage room and opening the agent’s luggage. Ultraviolet dye that had been on the money planted in the agent’s luggage was also found on Kavanaugh’s hands. Plaintiff was not observed engaging in any improper behavior, though there is some dispute as to whether she lied to the OIG agent about Kavanaugh’s whereabouts in order to keep him from getting into trouble.

At some point in January 2002, Mirandona learned that plaintiff was the target of an OIG investigation into the complaints about items having been stolen from detainees’ luggage. On January 29, 2002, after arriving at JFK, Mirandona was shown the video surveillance of Kavanaugh taking money from the agent’s bag and then returning it to the bag. Mirandona instructed Kavanaugh and plaintiff to leave the FIS area, at which point the following exchange took place:

Kavanaugh to Mirandona: “Let [plaintiff] work in the house. [Plaintiff] did not have nothing [sic] to do with this.”

Mirandona to Kavanaugh: “That’s not up to me. That’s up to Regis.”

Mirandona to Pilliggi: “Take [Kavanaugh’s] ID and take [plaintiff’s] too. Escort them out.”

Pilliggi to Mirandona: “I already took [Kavanaugh’s].” Kavanaugh: “OK.”

Plaintiff to Pilliggi: “This is very injustice [sic], sir, I didn’t do anything.”

Kavanaugh to Pilliggi: “I know when John calms down he will realize that [plaintiff] had nothing to do with this.”

Pursuant to (citation deleted), your access to U.S. Customs Security areas is permanently revoked. Plaintiff appealed the decision of the USCS, and in a March 5, 2002, letter Mitchell granted the appeal and reinstated plaintiff’s access to the Customs Security Area at JFK, noting that her access had previously been revoked “pursuant to derogatory information received from the Department of Justice, Office of the Inspector General concerning her involvement in an investigation conducted by them.” On April 16, 2002, plaintiff’s employer, Wackenhut Correctional Center, sent her a letter stating “due to an investigation, which is still ongoing, we have been instructed as per the Immigration and Naturalization Service to remove you from the INS contract effective April 25, 2002.”

Discussion

New York law holds that an employee’s tortious acts fall within the scope of his employment if “done while the servant was doing his master’s work, no matter how irregularly, or with what disregard of instructions.” The following factors have been weighed by courts in making such a determination: (1) whether the time, place and occasion for the act was connected to the employment; (2) the history of the employer-employee relationship in actual practice; (3) whether the act is one commonly done by such an employee; (4) the extent to which the act departs from normal methods of performance; and (5) whether the act was one that the employer could reasonably have anticipated.

Applying the preceding principles to the facts of this case, the evidence in the record leaves little doubt that if Mirandona made the allegedly defamatory statements complained of by plaintiff, he did so in the scope of his employment. While plaintiff alleged in her complaint that Mirandona accused her of “pilfering” items from the luggage of detainees on the morning of January 29, 2002, in the context of the conversation among herself, Mirandona, Kavanaugh, and Assistant Port Director Pilleggi, she later admitted in her deposition testimony that Mirandona made no such statement on that occasion. Plaintiff did testify that Mirandona said (1) he wanted her and Kavanaugh both gone, (2) that plaintiff and Kavanaugh had been working together for a long time, and (3) that he did not want to hear anything from plaintiff. Such statements, if made, were made by Mirandona while he was performing his duties as Port Director in supervising contract employees like plaintiff. This conversation took place immediately after Mirandona had seen the videotape of Kavanaugh going through the undercover agent’s luggage and handling the money planted there and indicates Mirandona’s determination that, based on the results of the undercover operation, plaintiff and Kavanaugh should no longer be given access to the secured inspection area, a determination that was within Mirandona’s authority to make.

Plaintiff, reluctant to abandon the “pilfering” allegation entirely, also argues in her brief that Mirandona must have, at some point, told Mitchell or told someone who told Mitchell that plaintiff had been observed “pilfering” items from detainee’s luggage because that was what Mitchell accused her of in the letter and only Mirandona could have been the source of that allegedly defamatory information. Notwithstanding the dubious logic of this argument, plaintiff testified in her deposition that, apart from what Mirandona said to her in the course of the conversation discussed above, he made no other allegedly defamatory comments. However, even if Mirandona did tell Mitchell or someone who relayed the information to Mitchell that plaintiff had “pilfered” objects from the detainees’ baggage, any such statement would still have been within the scope of Mirandona’s employment, as it would have been related to the undercover investigation of an employee under Mirandona’s supervision and would have been relevant to Mirandona’s determination as to whether plaintiff should continue to have access to the secured area. Furthermore, it is certainly foreseeable that Mirandona, in responding to the problem created by the stolen items, would have to make statements concerning his perception of the likely culpability of the suspects under investigation.

Even if the statements reflected an incorrect assessment of plaintiff’s involvement, that would not place the statements outside the scope of his employment, as under New York law an employee’s actions need only be generally foreseeable to the employer to fall within the scope of employment.

Plaintiff argues that Mirandona’s statements were outside the scope of his employment because they were made with personal animus: “We submit that, upon information and belief, on or about January 28, 2002, defendant John Mirandona spoke maliciously of the plaintiff when he communicated to the Area Director of the USCS Susan Mitchell, or some third party that the plaintiff was observed pilfering the items of personal property of a detainee.” New York law holds that a defendant “does not act within the scope of his employment when he engages in tortious conduct for personal reasons separate and distinct from the interests of his employer.”

Plaintiff’s evidence that Mirandona possessed some personal motive causing him to maliciously defame plaintiff is her wholly conclusory argument that Mirandona’s “demeanor” during the course of the January 29, 2002, conversation at the airport “is emblematic of someone acting with malice.” Plaintiff argues that the alleged exchange, in which Mirandona both said that plaintiff was implicated in the thefts because she had worked with Kavanaugh for a long time and refused to listen to her protestations of innocence, “demonstrates that despite being advised by the OIG criminal investigators that the plaintiff was not observed attempting to pilfer any luggage, defendant Mirandona still wanted her FBI access revoked regardless of the exculpatory evidence.”

However, not only do the referenced statements and actions by Mirandona fail to demonstrate any personal motivation on his part, plaintiff’s own deposition testimony serves once again to negate any inference that could possibly be raised. Plaintiff testified that she had no personal contact with Mirandona except for a brief greeting at Christmas, that she never reported to Mirandona, and that she had no reason to believe that any of the statements made by Mirandona in the conversation referenced above were motivated by personal reasons. Thus, there is simply nothing in the record to indicate that Mirandona acted out of personal motives or malice in making any statements about plaintiff.

As a final note, it is interesting that before plaintiff decided to challenge the Government’s certification, she appeared to readily admit that Mirandona was acting within the scope of his employment: “On or about January 29, 2002, at John F. Kennedy International Airport, defendant JOHN MIRANDONA, acting in his position as Assistant Area Port Director, did speak of the plaintiff the following false and defamatory words....” Thus, it is unclear that plaintiff was even entitled to discovery on this issue in the first place. She is certainly not entitled to more.

As the record clearly indicates that any allegedly defamatory statements made by Mirandona were made within the scope of his employment with a federal agency, the certification by the United States Attorney must be upheld, and the United States is properly substituted as the party defendant.

Conclusion

Because defendant Mirandona was acting within the scope of his employment at the time he allegedly uttered defamatory remarks about plaintiff, the Government’s certification is upheld, the United States is hereby substituted as defendant, and the claims against Mirandona are dismissed. SO ORDERED.

The plaintiff asserted a supervisor made defamatory statements, suing him in his individual capacity, rather than as an employee of the federal government. The lawsuit was framed this way because a federal statute bars defamation actions against the U.S. government. The court found that the allegedly defamatory statements were communicated in the scope and course of his employment. Further, because the plaintiff failed to show that the communication was not done with malice or for any personal reason, the communication was not actionable against the individual supervisor.

Background

Father who had taken film, containing pictures of himself and his son in bathtub, to store for developing brought breach of privacy and related claims against store and its manager who, believing that pictures were child pornography, had contacted police, thereby causing father to be transported to police station for questioning. The Circuit Court, Baltimore City, entered summary judgment for store and its manager, and father appealed. The court of special appeals ruled that certain claims were appropriately resolved on summary judgment, and remanded case. Store and manager filed petition for writ of certiorari, and the father filed cross-petition.

Holding

The court of appeals held that the availability of other alternatives, and the possibility, even probability, that the situation might have, or should have, been handled more effectively and sensitively, while perhaps suggesting negligence, did not equate to bad faith or a lack of good faith in connection with determining whether store and its manager, as reporters of child abuse, were entitled to statutory immunity from suit.

Affirmed in part; reversed in part; and remanded with directions.

The court of special appeals described these four photographs, in its unreported opinion, as follows:

“Mr. Hagley was wearing shorts; Kerwyn was naked. The first of those photographs show Mr. Hagley sitting in the tub of soapy water, with Kerwyn sitting on his lap. Mr. Hagley’s left arm was around the upper part of the boy’s body, with his left hand on Kerwyn’s right shoulder. Kerwyn’s left hand was in his lap, and his father’s right hand was on or over the boy’s left hand. Both were laughing. The second photograph shows Mr. Hagley sitting in the tub, with his left hand hidden behind Kerwyn’s thigh. The boy was standing with his back to the camera, looking over his shoulder toward the camera. Both were laughing. The third photograph shows Mr. Hagley sitting in the tub, looking up at Kerwyn, who was standing facing the camera. The fourth photograph shows Mr. Hagley and Kerwyn sitting in the tub, at the tap end, looking toward the camera.”

Mr. Rosiak was troubled by the photographs of Mr. Hagley and the child because, in at least one of the photographs, Mr. Hagley’s hand appeared to be “cupping” the child’s genitals. Finding them ambiguous, he was not certain how to interpret them.

When Mr. Hagley returned to the store to pick up the processed film (i.e., photographs and negatives), Mr. Rosiak refused to give him the photographs. Mr. Hagley asked why, and Mr. Rosiak answered: “I’m seeing some things in those pictures, and I don’t think I can give them to you.” Despite Mr. Hagley’s request that he do so, Mr. Rosiak refused to show Mr. Hagley the photographs or explain their objectionable content. When pressed further for an explanation, he stated “I’m seeing signs of child pornography, pedophile [sic] and improper touching of a minor.” That comment, Mr. Hagley alleges, was made loudly and in the presence of other Rite Aid customers. Mr. Hagley advised Mr. Rosiak that the child depicted in the photographs was his 8-year-old son, Kerwyn, and that the photographs were taken by the child’s mother, Ms. Martin. Mr. Hagley subsequently brought Ms. Martin to the store to verify that statement.

Apparently unsatisfied with Mr. Hagley’s explanation and still unsure of how to resolve the matter, Mr. Rosiak requested that Mr. Hagley return to the store at 1:00 p.m., at which time a supervisor would have an answer. He then consulted Rite Aid headquarters, and was instructed to report the matter to law enforcement and turn the photographs over to them. Mr. Rosiak complied with that instruction by contacting the Baltimore City Police. Upon returning to the store a few minutes before the appointed hour, Mr. Hagley observed Mr. Rosiak having a conversation with a group of people. As described by the intermediate appellate court:

When Mr. Hagley returned to the store several minutes before 1:00 p.m., he observed Mr. Rosiak showing the photographs [emphasis added] to three other people and discussing the pictures with them. Mr. Hagley recognized those three people: one was an employee of Rite Aid, whom he knew only as “Chris” (assistant manager Carrissa Esposito); the second was a mall security guard he knew as Mr. Byrd; and the third was another mall security guard whose name he did not know. Mr. Rosiak was asking their opinion of the photographs, but each of them declined to venture an opinion. When Mr. Rosiak and the others saw Mr. Hagley, who was about twelve feet away, the conversation stopped.

The detective came to the Rite Aid Store. After reviewing the photographs and questioning a few people, he determined that the child in the photographs was Mr. Hagley’s son, but that the photographs were “questionable.” Believing, therefore, that further inquiry was warranted, he thus took possession of the photographs, later, submitting them to the evidence control unit, and caused Kerwyn to be taken into the custody of Child Protective Services in order to be interviewed at the Baltimore Child Abuse Center. In addition, the detective sought the opinion of the Baltimore City State’s Attorney Office as to whether the content of the photographs warranted the filing of criminal charges.

Mr. Hagley was transported to the police station for questioning by one of the police officers. According to the detective, he was never placed under arrest and, in fact, was free to leave at any time. According to Mr. Hagley, although he was told by the police officers that he could leave, subject to later being picked up at home and taken to the police station, the detective told him that he had to come downtown to answer questions at the police station. He indicated further that he was not told he was free to leave the police station until approximately 7:00 p.m., when, after questioning and investigation, the State’s Attorney’s Office had determined that no criminal charges were warranted. Thereafter, Mr. Hagley, was driven back to the Alameda Shopping Center to retrieve his car.

To address and combat the problem of child abuse and neglect, the Maryland General Assembly, by mandated the reporting of suspected child abuse or neglect to the appropriate authorities and “giving immunity to any individual who reports, in good faith, a suspected incident of abuse or neglect.” The policy underlying the reporting requirement imposed, and the immunity given, “is to protect children who have been the subject of abuse or neglect” (stating that the purpose of the reporting requirements is “to redress previous abuse and to prevent future incidence thereof”). Thus, imposes a duty on health practitioners, police officers, educators or human service workers, to report suspected child abuse or neglect encountered in their professional capacity to the local department, appropriate law enforcement agency or the appropriate institution head.

The legislature understood that the purpose of mandating reporting of child abuse and neglect would be undermined if a person making a good faith report, that later proved to be false, were to be subjected to civil liability. Consistent with what every state in the nation was doing, the legislature intended to encourage the good faith reporting of suspected child abuse to authorities without the fear of civil and criminal liability for reports later determined to be unfounded. Consequently, at the same time that it mandated reporting, the General Assembly granted statutory immunity from civil and criminal liability to “any person who in good faith makes or participates in making a report of abuse or neglect or participates in an investigation or a resulting judicial proceeding (emphasis added).”

The term abuse is defined in the statute to include “sexual abuse of a child, whether physical injuries are sustained or not.” The photographing of a nude child for one’s own benefit or advantage can constitute sexual abuse under Maryland law (which defined sexual child abuse as “any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child”). The court of special appeals held:

To be convicted of exploitation and, therefore, child abuse, threats, coercion, or subsequent use of the fruits of the acts are not necessary. The State need only prove, beyond a reasonable doubt, that the parent or person having temporary or permanent custody of a child took advantage of or unjustly or improperly used the child for his or her own benefit.

“Good-faith” is an intangible and abstract quality that encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage. To further illuminate the definition of “good-faith,” we have found it most instructive to compare the definition of “bad-faith.” “Bad-faith” is the opposite of “good-faith”; it is not simply bad judgment or negligence, but implies a dishonest purpose or some moral obliquity and a conscious doing of wrong. Though an indefinite term, “bad-faith” differs from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with a furtive design. Thus, we would infer that the definition of “good-faith” means with an honest intention.

We agree. Under that definition, to be entitled to the statutory immunity, a person must act with an honest intention (i.e., in good faith), not simply negligently, in making or participating in the making of a report of abuse or neglect or when participating in an investigation or resulting judicial proceeding.

Analysis

The trial court resolved all inferences from the record against the petitioners, as the moving party, and concluded that there was no genuine dispute of material fact, warranting trial. The court of special appeals agreed with respect to the counts other than the defamation count and the breach or invasion of privacy counts.

The respondents do not agree. They submit that they have offered evidence to rebut the petitioners’ claim of good faith reporting. In an attempt to ascribe, and justify, a sinister motive to Mr. Rosiak’s actions in reporting the contents of the photographs, the respondents have fashioned a number of general allegations, hypothetical scenarios and alternative courses of action that Mr. Rosiak could, and they contend, should, have taken before reporting suspected child abuse based on the photographs. None of these allegations address directly the state of mind of Mr. Rosiak with respect to the content of the photographs. The respondents do not attempt to allege that Mr. Rosiak knew, or had reason to know, that the photographs did not depict child abuse and made a report of suspected child abuse in spite of that knowledge. Nor do they contend that Mr. Rosiak misstated or mischaracterized what he saw on the photographs, either to the police or to anyone else, or that he made untruthful or reckless remarks with regard to their content.

The respondents note, instead, that Mr. Rosiak did not strictly abide by a Rite Aid internal-company memorandum which outlined the procedure for dealing with sexually explicit photographs. In addition, the respondents complain that Mr. Rosiak did not discuss the matter with Mr. Hagley in private, before deciding what to do, although he did discuss the photographs privately with the police officers. The respondents also characterize as evidence of bad faith, Mr. Rosiak’s exclusion of Mr. Hagley from the private discussion he had with the police. The respondents contend that if Mr. Rosiak were truly interested in protecting a possible victim of child abuse, he would not have left Mr. Hagley, the potential abuser, alone in the store while making the report to the police, where Mr. Hagley was free to “possibly escape the scene.” And the fact that Mr. Rosiak, although viewing it as odd, did not inform the police that Mr. Hagley had brought the child’s mother to the store to resolve the misunderstanding is further indication, they argue, of his lack of good faith. Finally, the respondents argue that Mr. Rosiak’s bad faith can be inferred because he set Mr. Hagley up to be arrested by instructing him to return to the store at 1:00 p.m. and having the police arrive virtually simultaneously. Collectively, these acts, the respondents maintain, could lead a reasonable juror to infer that Mr. Rosiak was not interested in disclosing all sides of the story to the police or that he harbored an ill motive toward Mr. Hagley, and, consequently, was not acting in good faith.

We, however, are at a loss to discern how any of these facts, whether considered singly or collectively, could lead to an inference that Mr. Rosiak lacked good faith in reporting suspected child abuse. As the court of special appeals pointed out:

Those assertions do not ... give rise to any reasonable inference that Rosiak did not honestly believe that the photographs were suggestive of child pornography or child abuse. He did not know Hagley; there was no suggestion of any fact that might even suggest a motive, other than a belief that the photographs depicted a form of child abuse, for Rosiak to call the police. Rosiak’s conduct toward Hagley after he saw the photographs might suggest feeling of anger, disgust, or perhaps revulsion, but such emotions can only be explained as reactions to what Rosiak believed that the photographs depicted.

What the respondents’ general allegations do indicate is that there were other alternatives available to Mr. Rosiak for handling the situation and that, perhaps, it could have, and probably, should have been handled better. But the availability of other alternatives, and the possibility, even probability, that the situation might have, or should have, been handled more effectively and sensitively, while perhaps suggesting negligence, does not equate to bad faith or a lack of good faith. And, as we have seen, negligence is not sufficient to negate good faith. What steps Mr. Rosiak could have taken is not determinative; what actions Mr. Rosiak did, in fact, take is the determinative question.

Whether Mr. Rosiak strictly followed the Rite Aid policy in dealing with the photographs cannot rebut his claim of good faith in reporting his suspicion that the photographs depicted child abuse. Mr. Rosiak certainly could have timed his call to the police differently; however, that he did not does nothing to establish that he did not act in good faith in making the report of suspected child abuse.

Furthermore, Mr. Rosiak’s discussion of the photographs with the police officers in a private office casts no light whatsoever on his motive in reporting what he believed to be suspected child abuse. The fact that Mr. Rosiak maintained a private office in the store is only relevant to show that he had an alternative forum for discussing the matter with Mr. Hagley and, thus, could have avoided the allegedly defamatory speech. The maintenance of a private office is not relevant, however, to show that Mr. Rosiak did not act in good faith or whether the allegedly defamatory speech is immune from suit under the statutes. Moreover, although Mr. Rosiak may have thought it was odd for Mr. Hagley to return with the child’s mother to explain the photographs, his failure to disclose that fact to the police, again, is not suggestive of a lack of good faith. Mr. Rosiak was certainly under no duty to convey the suspected child abusers’ explanation of the photographs to the authorities. The immunity statutes do not require a reporter of suspected child abuse to verify every detail of the suspected conduct or perfectly recount all that he or she is told in order to be found to have acted in good faith when making the report. The statutes simply require that the reporter make a report in good faith. Thereafter, law enforcement or the appropriate department of social services personnel are charged with investigating the facts surrounding that report.

For the respondents to oppose the summary judgment motion successfully, they must have made a showing, supported by particular facts sufficient to allow a fact finder to conclude that Mr. Rosiak lacked good faith in making the report of suspected child abuse. They might have done so by producing specific facts showing that Mr. Rosiak knew, or had reason to know, that the photographs did not depict a form of child abuse and, in total disregard of that knowledge, filed a report anyway. What the respondents have produced are general allegations, that simply show that all of Mr. Rosiak’s actions in making the report can be second-guessed. Legitimizing this sort of Monday-morning quarterbacking would render the immunity conferred by the statute essentially useless.

Notwithstanding its application to the different counts alleged, all of the conduct by Mr. Rosiak in this case was, as the petitioners point out, closely related both in terms of time and subject matter. Thus, what Mr. Rosiak did and the conversations he had with Mr. Hagley all occurred within the space of a few hours, in the Rite Aid store and was concerned with the course of action he should pursue as a result of the contents of some photographs he had developed for Mr. Hagley. What Mr. Rosiak said to Mr. Hagley about what he saw in the photographs had no independent relevance; it was only because of the decision Mr. Rosiak was required to make with respect to reporting suspected child abuse, that the explanation was made. That it was made in the presence of others does not change this basic fact. Neither can the conferring with others concerning the decision to be made separate that fact from the basic issue, whether what Mr. Rosiak observed in the photographs was suspected child abuse, which Mr. Rosiak was legally required to report.

We agree with the petitioners that the Court of Special Appeals has interpreted the child abuse reporting statutes too narrowly. First, the statutes cover more than making a report. They recognize that individuals, other than the reporter, may play a role in the making of the report, although they may not themselves make it. In addition, the statutes cover investigations and resulting judicial proceedings. As the appeals court interprets those statutes, a reporter, admittedly acting in good faith in making a report of suspected child abuse, may nevertheless be held liable civilly if, during the course of deciding whether to make a report, he or she mentions the nature of the concern he or she has and happens to do so, perhaps negligently, in the presence of someone other than a police officer, or seeks the advice of someone other than a police officer to assist in the decision making. Thus, the appellate court does not seem to take into account the breadth of the statutes or give effect to any of the conduct warranting immunity, except reporting. Such an interpretation and result, fly in the face of the purpose of the statutes and undermine the statutes’ effectiveness; reports of suspected child abuse, in the case of ambiguous conduct, as in this case, either will not be filed or, if they are, they will be filed without the careful consideration allegations based on ambiguous conduct deserve to, and should, receive.

We hold that the court of special appeals erred in reversing the judgment of the trial court with respect to the counts alleging invasion of privacy and defamation.

This case illustrates the difficult balance of a reporting statute that requires the disclosure to law enforcement authorities of possible child abuse against the privacy rights of the person who is suspected of child abuse. These reporting statutes are designed to protect children from sexual and physical abuse. However, these mandated disclosure statutes may result in violating the privacy of individuals in the quest to keep children safe. The court in this case gave great discretion to the reporter in order to maintain the incentive to report. In this way, if the reporter did not have a sufficient level of immunity from prosecution by the alleged child abuser, then why would any reasonable person report the suspected abuse? The court held that the immunity was rather broad, and protected the reporter from liability, even considering the questionable way he communicated the allegations of child abuse.

Background

Former airport security officer brought action against airport, city police department, and state department of justice, alleging violation of his right to privacy and related claims arising from his termination from employment prior to expiration of six-month probationary period, allegedly due to another security officer obtaining information regarding former officer’s prior arrest. The District Court, Cascade County, granted summary judgment to defendants. Former officer appealed.

Holdings

The supreme court held that officer had no subjective or actual expectation of privacy in his initial arrest record from another state, such as would implicate provision of state constitution protecting his right to privacy; and also could not establish any other cause of action related to the disclosure of his arrest record.

Affirmed

In the fall of 1998, Barr applied for a part-time security officer position with the airport. During his interview for the position, Barr consented to a criminal background check.

The airport participates in the Criminal Justice Information Network (CJIN), but must submit any criminal background request through an agency with computer terminal access to the CJIN database, which is a computer controlled telecommunications network that interfaces with computerized databases maintained by various law enforcement agencies throughout the nation. The National Crime Information Center (NCIC) is a computerized information system which links local, state, and federal criminal justice agencies for the purpose of exchanging information, including criminal history repositories of the states and FBI. GFPD is a terminal agency with access to the CJIN system; it has the capability to perform criminal background checks.

On September 14, 1998, Bruce Sanford, an airport security officer, contacted GFPD and requested a criminal background check on Barr for the preceding ten years. The background check did not reveal any arrests. Barr was hired as a part-time probationary security officer for the airport on October 2, 1998.

On November 7, 1998, John Vanni, an airport security officer contacted GFPD employee Gina Vincent and, without permission from the airport, requested a criminal background check on Barr. The result of this request revealed Barr had been arrested in Alaska in 1968 for criminal nonsupport. Vanni reported this arrest to Cynthia Schultz, the airport manager, who told Vanni it was not his concern.

Barr was terminated from his employment at the airport on March 18, 1999, prior to the expiration of the six-month probationary period. Barr filed this lawsuit alleging numerous causes of action. All three defendants filed motions for summary judgment. Their motions were granted on July 2, 2003. Barr now appeals from the district court’s grant of these motions.

Discussion

Barr argues the unauthorized disclosure of criminal justice information by the State, and its use and dissemination by Vanni, was a violation of his right to privacy under Article II, Section 10 of the Montana Constitution as well as a violation of the Montana Criminal Justice Information Act of 1979 (MCJIA). He also claims such was a violation of the 1974 National Crime Prevention Policy Compact (the Privacy Act), codified at 5 U.S.C. Section 552(a) and Section 44-5-601, MCA, et seq. Barr, in essence, claims the defendants failed to meet state and federal constitutional and statutory standards imposed for the protection of his privacy.

The defendants argue Barr’s 1968 Alaska arrest was not confidential criminal justice information; rather, it was public information that anyone could access. They assert that Barr’s right to privacy was not violated by any dissemination of this information. The State claims that, contrary to Barr’s assertions, the civil remedy provisions of the Privacy Act do not provide a private cause of action against a state agency.

The Montana Legislature has defined confidential criminal justice information as: criminal investigative information, criminal intelligence information, fingerprints and photographs, criminal justice information or records made confidential by law, and any other criminal justice information not clearly defined as public criminal justice information. Pursuant to (citation deleted), public criminal justice information includes Barr’s initial arrest record at issue. Thus, under MCJIA, Barr’s Alaska arrest was clearly public information.

Aside from the MCJIA, this court has adopted a two-part test to determine whether Barr has a constitutionally protected privacy interest in this information: (1) whether the person involved had a subjective or actual expectation of privacy, and (2) whether society is willing to recognize that expectation as reasonable.

In this instance, Barr had no subjective or actual expectation of privacy in his initial arrest record; it constitutes public information that anyone could access. He admitted in his deposition that his arrest record was public information. Although it may be difficult to access the arrest record, it is still public information. Thus, the district court did not err when it concluded Barr’s 1968 Alaska arrest was public information and that there was no breach of the MCJIA.

Under the particular circumstances of this case, where Barr knew that the record of his long past arrest was public information and he also consented to a criminal background check, he had no actual or subjective expectation of privacy. Further, in this case, Barr was a security officer entrusted with helping to ensure the safety of the traveling public, and the record in question is specifically designated as public information by statute. Thus, under these facts, we conclude the public is not willing to recognize Barr’s claimed expectation of privacy as reasonable.

As the State points out, the civil remedy provision of the federally enacted Privacy Act only applies to actions against a federal agency (holding the Privacy Act applies only to federal agencies and that state agencies are immune from liability under the Act). There are no federal agencies named as defendants in this lawsuit. Accordingly, the district court was correct when it granted the defendants’ motions for summary judgment and held Barr’s claim under the Privacy Act of 1974, 5 U.S.C. Section 552(a), failed as a matter of law.

Barr also asserts the airport’s conduct, in not hiring him as a permanent employee, violated his civil rights under 42 U.S.C. Section 1983, and resulted in a conspiracy denying him immunities and privileges under the law, contrary to 42 U.S.C. Section 1985(3). In regard to this civil rights claim, the airport argues that municipalities are not liable, for the constitutional torts of their employees under the theory of respondeat superior.

GFPD makes a similar argument, stating that in order for a municipality to be liable under these statutes there must be a policy or custom of the government entity itself which inflicts the injury complained of by the plaintiff. GFPD argues Barr cannot show this.

The State argues Barr’s claims under 42 U.S.C. Sections 1983 and 1985(3) fail as a matter of law because the Department of Justice is not a “person” within the meaning of Section 1983 and Section 1985(3) and therefore this statute has no applicability.

Barr’s claimed civil rights violations stem from an invasion of his privacy, which we have already determined did not occur. Thus, he cannot establish a Section 1983 violation of his right to privacy.

Likewise, Barr did not offer proof of a policy or custom utilized by the defendants which resulted in a violation of his civil rights. Under Monell v. Dept. of Soc. Services, municipalities such as the airport and GFPD cannot be held liable unless action pursuant to official municipal policy of some nature caused the constitutional tort. Barr offered no proof of a custom or policy of refusing to hire probationary employees who complained that their privacy rights had been violated. Accordingly, Barr has no valid claim under 42 U.S.C. Sections 1983 and 1985(3) against any of the defendants. The district court did not err when it granted the defendants’ motions for summary judgment and held Barr’s civil rights claims failed as a matter of law.

Barr also argues the defendants violated NCIC regulations by improperly disseminating criminal history record information and that this constitutes negligence per se under Montana law. The defendants argue that Barr cannot establish negligence per se because he failed to prove a predicate statutory violation as required by Montana law.

The doctrine of negligence per se, or negligence as a matter of law, provides that the violation of a statute renders one negligent under the law. To establish negligence per se, a plaintiff must prove that (1) the defendant violated the particular statute; (2) the statute was enacted to protect a specific class of persons; (3) the plaintiff is a member of that class; (4) the plaintiff’s injury is of the sort the statute was enacted to prevent; and (5) the statute was intended to regulate members of defendant’s class.

We have already determined that there was no violation of law pertaining to confidential criminal justice information. As Vanni was an Airport security officer, authorized to request the information provided, there was no violation of NCIC regulations. Thus, there is no predicate statutory violation on which to base a negligence per se claim. Accordingly, summary judgment in favor of the defendants was proper on Barr’s negligence per se claim.

Since we have determined Barr’s 1968 Alaska arrest was public information, and its dissemination was not improper, there was no duty owed to prohibit dissemination of the fact Barr had been arrested in 1968. Thus, the district court did not err in granting the defendants’ Motions for Summary Judgment on this issue.

The judgment of the district court is affirmed.

This case also illustrates the balance between a statute providing for disclosure of arrest information against the improper disclosure of private information. Since the court held that the plaintiff’s arrest information was deemed “public information,” he could not sustain an invasion of privacy claim. In addition, the plaintiff failed to show that the disclosure of the information violated his rights under the civil rights statute and that it constituted negligence per se.

Background

College athletes brought action against Internet service provider (ISP) under Electronic Communications Privacy Act (ECPA). The United States District Court for the Northern District of Illinois dismissed action. Athletes appealed.

Holding

The court of appeals held that ISP was not liable to athletes for customer’s use of service to display images of athletes who were unknowingly recorded unclothed while in locker room setting.

Affirmed

Someone secreted video cameras in the locker rooms, bathrooms, and showers of several sports teams. Tapes showing undressed players were compiled, given titles such as “Voyeur Time” and “Between the Lockers,” and sold by entities calling themselves “Franco Productions,” “Rodco,” “Hidvidco—Atlas Video Release,” and other names designed to conceal the persons actually responsible. All of this happened without the knowledge or consent of the people depicted. This suit, filed by football players at Illinois State University, wrestlers at Northwestern University, and varsity athletes from several other universities, named as defendants not only the persons and organizations that offered the tapes for sale (to which we refer collectively as “Franco”), plus college officials who had failed to detect the cameras (or prevent their installation), but also three corporations that provided Internet access and web hosting services to the sellers. The sellers either defaulted or were dismissed when they could not be located or served. The college officials prevailed on grounds of qualified immunity. The only remaining defendants are the informational intermediaries—large corporations, two thirds of them solvent. The solvent defendants are GTE Corp. and Genuity Inc. (formerly known as GTE Internetworking), both of which are subsidiaries of Verizon Communications. The district court dismissed all claims against them in reliance on 47 U.S.C. Section 230(c).

After the judgment became final with the resolution or dismissal of all claims against all other defendants—the defaulting defendants were ordered to pay more than $500 million, though there is little prospect of collection—plaintiffs filed this appeal in order to continue their pursuit of the deep pockets.

According to the complaint, GTE provided web hosting services to sites such as “youngstuds.com” at which the hidden-camera videos were offered for sale. GTE did not create or distribute the tapes, which were sold by phone and through the mail as well as over the Internet. Although the complaint is not specific about just what GTE did, we may assume that GTE provided the usual package of services that enables someone to publish a website over the Internet. This package has three principal components: (1) static IP (Internet protocol) addresses through which the websites may be reached (a web host sometimes registers a domain name that corresponds to the IP address); (2) a high-speed physical connection through which communications pass between the Internet’s transmission lines and the websites; and (3) storage space on a server (a computer and hard disk that are always on) so that the content of the websites can be accessed reliably.

Advertisements about, and nude images from, the videos thus passed over GTE’s network between Franco and its customers, and the data constituting the website were stored on GTE’s servers. Franco rather than GTE determined the contents of the site, though the complaint raises the possibility that GTE’s staff gave Franco technical or artistic assistance in the creation and maintenance of its website. Sales occurred directly between Franco and customers; communications may have been encrypted (most commercial transactions over the Internet are); and GTE did not earn revenues from sales of the tapes. Franco signed contracts with GTE promising not to use the website to conduct illegal activities, infringe the rights of others, or distribute obscenity (a promise Franco broke). GTE thus had a contractual right to inspect each site and cut off any customer engaged in improper activity. We must assume that GTE did not exercise this right. Some domain administrators and other personnel maintaining GTE’s servers and communications network may have realized the character of Franco’s wares, but if so they did not alert anyone within GTE who had the authority to withdraw services. Managers were passive, and the complaint alleges that GTE has a policy of not censoring any hosted website (that is, that GTE does not enforce the contractual commitments that Franco and other customers make).

The district court’s order dismissing the complaint rests on 47 U.S.C. Section 230(c), a part of the Communications Decency Act of 1996. This subsection provides:

(c) Protection for “Good Samaritan” blocking and screening of offensive material.

(1) Treatment of publisher or speaker. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability. No provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

These provisions preempt contrary state law. “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. Section 230(e)(3). But “nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.” 47 U.S.C. Section 230(e)(4). We therefore start with the question whether plaintiffs have a claim under the Electronic Communications Privacy Act.

Plaintiffs rely on 18 U.S.C. Sections 2511 and 2520, two provisions of that statute. Under Section 2511(1), “any person who—(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication” faces civil liability. Section 2520(a) creates a damages remedy in favor of a person “whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter.” Franco and confederates intercepted and disclosed oral communications (the tapes have audio as well as video tracks) and thus are liable under Section 2511 and Section 2520. But what could be the source of liability for a web host?

GTE did not intercept or disclose any communication; and though one could say that its network was a “device” to do so, plaintiffs do not make such an argument (which would be equally applicable to a phone company whose lines were used to spread gossip). Instead plaintiffs say that GTE is liable for aiding and abetting Franco. Yet nothing in the statute condemns assistants, as opposed to those who directly perpetrate the act. Normally federal courts refrain from creating secondary liability that is not specified by statute. Although a statute’s structure may show that secondary liability has been established implicitly, it is hard to read Section 2511 in that way. Subsection 2511(1)(c) creates liability for those who willfully disseminate the contents of unlawfully intercepted information. A statute that is this precise about who, other than the primary interceptor, can be liable, should not be read to create a penumbra of additional but unspecified liability.

What is more, GTE’s activity does not satisfy the ordinary understanding of culpable assistance to a wrongdoer, which requires a desire to promote the wrongful venture’s success. A web host, like a delivery service or phone company, is an intermediary and normally is indifferent to the content of what it transmits. Even entities that know the information’s content do not become liable for the sponsor’s deeds. Does a newspaper that carries an advertisement for “escort services” or “massage parlors” aid and abet the crime of prostitution, if it turns out that some (or many) of the advertisers make money from that activity? How about Verizon, which furnishes pagers and cell phones to drug dealers and thus facilitates their business? GTE does not want to encourage the surreptitious interception of oral communications, nor did it profit from the sale of the tapes. It does profit from the sale of server space and bandwidth, but these are lawful commodities whose uses overwhelmingly are socially productive. That web-hosting services likewise may be used to carry out illegal activities does not justify condemning their provision whenever a given customer turns out to be crooked. Franco did not demand a quantity or type of service that is specialized to unlawful activities, nor do plaintiffs allege that the bandwidth or other services required were themselves tip-offs so that GTE, like the seller of sugar to a bootlegger, must have known that the customer had no legitimate use for the service. Just as the telephone company is not liable as an aider and abettor for tapes or narcotics sold by phone, and the postal service is not liable for tapes sold (and delivered) by mail, so a web host cannot be classified as an aider and abettor of criminal activities conducted through access to the Internet. Congress is free to oblige web hosts to withhold services from criminals (to the extent legally required screening for content may be consistent with the first amendment), but neither Section 2511(a) nor Section 2520 can be understood as such a statute.

Section 230(c)(2) tackles this problem not with a sword but with a safety net. A web host that does filter out offensive material is not liable to the censored customer. Removing the risk of civil liability may induce web hosts and other informational intermediaries to take more care to protect the privacy and sensibilities of third parties. The district court held that subsection (c)(1), though phrased as a definition rather than as an immunity, also blocks civil liability when web hosts and other Internet service providers (ISPs) refrain from filtering or censoring the information on their sites. Franco provided the offensive material; GTE is not a “publisher or speaker” as Section 230(c)(1) uses those terms; therefore, the district court held, GTE cannot be liable under any state-law theory to the persons harmed by Franco’s material. This approach has the support of four circuits. No appellate decision is to the contrary.

If this reading is sound, then Section 230(c) as a whole makes ISPs indifferent to the content of information they host or transmit: whether they do or do not take precautions, there is no liability under either state or federal law. As precautions are costly, not only in direct outlay but also in lost revenue from the filtered customers, ISPs may be expected to take the do-nothing option and enjoy immunity under Section 230(c)(1). Yet Section 230(c)—which is, recall, part of the “Communications Decency Act”—bears the title “Protection for ‘Good Samaritan’ blocking and screening of offensive material,” hardly an apt description if its principal effect is to induce ISPs to do nothing about the distribution of indecent and offensive materials via their services. Why should a law designed to eliminate ISPs’ liability to the creators of offensive material end up defeating claims by the victims of tortious or criminal conduct?

True, a statute’s caption must yield to its text when the two conflict, but whether there is a conflict is the question on the table. Why not read Section 230(c)(1) as a definitional clause rather than as an immunity from liability, and thus harmonize the text with the caption? On this reading, an entity would remain a “provider or user”—and thus be eligible for the immunity under Section 230(c)(2)—as long as the information came from someone else; but it would become a “publisher or speaker” and lose the benefit of Section 230(c)(2) if it created the objectionable information. The difference between this reading and the district court’s is that Section 230(c)(2) never requires ISPs to filter offensive content, and thus Section 230(e)(3) would not preempt state laws or common-law doctrines that induce or require ISPs to protect the interests of third parties, such as the spied-on plaintiffs, for such laws would not be “inconsistent with” this understanding of Section 230(c)(1). There is yet another possibility: perhaps Section 230(c)(1) forecloses any liability that depends on deeming the ISP a “publisher”—defamation law would be a good example of such liability—while permitting the states to regulate ISPs in their capacity as intermediaries.

We need not decide which understanding of Section 230(c) is superior, because the difference matters only when some rule of state law does require ISPs to protect third parties who may be injured by material posted on their services. Plaintiffs do not contend that GTE “published” the tapes and pictures for purposes of defamation and related theories of liability. Thus plaintiffs do not attempt to use theories such as the holding of Braun v. Soldier of Fortune, that a magazine publisher must use care to protect third parties from harm caused by the sale of products or services advertised within its pages, and we need not decide whether such theories (if recognized by state law and applied to ISPs) would survive Section 230(c). Instead, they say, GTE is liable for “negligent entrustment of a chattel,” a tort that the Restatement (Second) of Torts Section 318 encapsulates thus:

If the actor permits a third person to use ... chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others ... if the actor (a) knows or has reason to know that he has the ability to control the third person, and (b) knows or should know of the necessity and opportunity for exercising such control.

The idea is that if A entrusts his car to B, knowing that B is not competent to drive, then A (if present) must exercise reasonable care to protect pedestrians and other drivers. Plaintiffs want us to treat GTE’s servers, routers, and optical-fiber lines as chattels negligently “entrusted” to Franco and used to injure others. But GTE did not entrust its computers, network, or any other hardware to Franco; it furnished a service, not a chattel.

Plaintiffs do not cite any case in any jurisdiction holding that a service provider must take reasonable care to prevent injury to third parties. Consider the postal service or Federal Express, which sell transportation services that could be used to carry harmful articles. As far as we can discover, no court has held such a carrier liable for failure to detect and remove harmful items from shipments. That likely is why plaintiffs have not sued any delivery service for transporting the tapes from Franco to the buyers. Similarly, telephone companies are free to sell phone lines to entities such as Franco, without endeavoring to find out what use the customers make of the service. Again plaintiffs have not sued any phone company.

Yet an ISP, like a phone company, sells a communications service; it enabled Franco to post a website and conduct whatever business Franco chose. That GTE supplied some inputs (server space, bandwidth, and technical assistance) into Franco’s business does not distinguish it from the lessor of Franco’s office space or the shipper of the tapes to its customers. Landlord, phone company, delivery service, and web host all could learn, at some cost, what Franco was doing with the services and who was potentially injured as a result; but state law does not require these providers to learn, or to act as Good Samaritans if they do. The common law rarely requires people to protect strangers, or for that matter acquaintances or employees. States have enacted statutes to change that norm in some respects; Dram Shop laws are good examples. Plaintiffs do not identify anything along those lines concerning web hosts.

Certainly “negligent entrustment of a chattel” is not a plausible description of a requirement that service providers investigate their customers’ activities and protect strangers from harm. Nor does the doctrine of contributory infringement offer a helpful analogy. A person may be liable as a contributory infringer if the product or service it sells has no (or only slight) legal use, but GTE’s web hosting services are put to lawful use by the great majority of its customers. (This is why ISPs are not liable as contributory infringers for serving persons who may use the bandwidth to download or distribute copyrighted music—and indeed enjoy safe harbors under the Digital Millennium Communications Act, discussed in Aimster, unless the ISP has actual notice that a given customer is a repeat infringer.) For the same reason, plaintiffs’ invocation of nuisance law gets them nowhere; the ability to misuse a service that provides substantial benefits to the great majority of its customers does not turn that service into a “public nuisance.”

Maybe plaintiffs would have a better argument that, by its contracts with Franco, GTE assumed a duty to protect them. No third party–beneficiary argument has been advanced in this court, however, so we need not decide how it would fare. None of the arguments that plaintiffs now make shows that any of the states where their colleges and universities were located requires suppliers of web hosting services to investigate their clients’ activities and cut off those who are selling hurtful materials, so the district court’s judgment is AFFIRMED.

CASE COMMENT

This case provides an excellent analysis of the issues and legal principles related to the dissemination of nude images over the Internet. In this case, the images are taken by concealed cameras in the showers and locker rooms of collegiate athletes. The athletes sought to hold the Internet service provider (ISP) liable for invasion of privacy. The court dismissed the case against the ISP, holding in essence, that the ISP did not conduct the invasion of privacy, nor did even publish the photos. Instead, the ISP merely transmitted the images via the Internet. Significantly, the ISP did not have liability unless it can be shown that it had actual knowledge of the obscene or offensive materials being transmitted.

DISCUSSION QUESTIONS

What aspects of your private life are available in the public realm? Are the integration and dissemination of public records on the Internet, such as court records, financial and property records, and even webcams affecting your expectation of privacy? Given the vast amounts of offensive and private information available on the Internet, should ISPs be required to act with more diligence relative to the dissemination of information? If not, why not?