Last week, the United States District Court for the Southern District of Texas held that an Electronic Data and Distribution of Material in Violation of Statutes exclusion, a variant of the Telephone Consumer Protection Act (“TCPA”) exclusion, did not prohibit coverage for an insured’s wrongful, online publication of genetic data in violation of a statute. Evanston Ins. Co. v. Gene By Gene, Ltd., 2016 WL 102294 (S.D. Texas, Jan. 6, 2016). In so holding, the court construed the exclusion to address solely intrusion upon seclusion claims. The facts of the case are straightforward.
The insured, Gene by Gene Ltd. (“GBG”), owned and operated a genealogy website whereby users of the site were offered the opportunity to take DNA tests and then use their genetic information from the tests to learn more about their ancestry and connect with other users whose results matched their own results in varying degrees. Gene By Gene, 2016 WL 102294 at *1. An underlying plaintiff sued GBG in Alaska federal court, alleging that GBG improperly published his DNA test results on its website without his consent and in violation of Alaska’s Genetic Privacy Act. Id. The Genetic Privacy Act prohibits disclosure of a person’s DNA analysis without written and informed consent. See AS §18.13.010.