We have all heard the question “if a tree falls in the forest…,” a philosophical experiment that raises questions of observation, knowledge, and reality. Whether or not the philosopher George Berkeley deserves credit for first raising the question, if still alive, he may have been disappointed in yesterday’s decision, Travelers Indem. Co. of Am. v. Portal Healthcare Solutions, LLC, No. 14-1944 (4th Cir. Apr. 11, 2016). In that case, the trial court had addressed the legal question of “whether materials are published if they are posted on the Internet, but no one reads them?” As discussed by The Coverage Inkwell in August 2014, the trial court answered the question in the affirmative. Yesterday, the Fourth Circuit affirmed the decision, but never really weighed in on the question. That’s too bad.
The facts of the case are straightforward. The insured Portal Healthcare Solution (“Portal”) specialized in the electronic safekeeping of medical records for hospitals, clinics, and other medical providers. Travelers Indem. Co. of Am. v. Portal Healthcare Solutions, LLC, 35 F. Supp. 3d 765, 767-78 (E.D. Va. 2014). A New York putative class action was filed against it, alleging that Portal had failed to safeguard the confidentiality of the medical records of patients at Glen Falls Hospital (“Glen Falls”) by posting them on the Internet and making them publicly accessible through Internet searches. Id. Two patients of Glen Falls discovered the breach when they conducted a Google search for their names and found links that directed them to their Glen Falls medical records. Id.
Travelers issued two policies, each having slightly different language. One covered injury arising from the “electronic publication of material that … gives unreasonable publicity to a person’s private life.” The second covered injury arising from the “electronic publication of material that … discloses information about a person’s private life.” Id. at 767. The key issue in the trial court was whether making medical records accessible on the Internet constituted a “publication” under the terms of the policies, even if no one had read the information.
Looking to dictionary definitions for the word “publication,” the trial court concluded that the meaning of “publication” includes “to place before the public (as through a mass medium).” Id. at 770. Thus, making the records accessible constituted a “publication.”
Exposing medical records to the online searching of a patient’s name, followed by a click on the first result, at least “potentially or arguably” places those records before the public. Any member of the public could retrieve the records of a Glen Falls patient, whether he or she was actively seeking those records or searching a patient’s name for other purposes, like a background check. Because medical records were placed before the public, the Court finds that Portal’s conduct falls within the plain meaning of “publication.”
Id. at 770 (bold added). The trial court summarily rejected the argument that because Portal Healthcare had not intended to release the information, there was no “publication,” stating that “the issue cannot be whether Portal intentionally exposed the records to public viewing since the definition of ‘publication’ does not hinge on the would-be publisher’s intent.” Id.
Importantly, the court also rejected the argument that because no one had read the records, there was no “publication.” In other words, the court took the approach that if a tree falls, of course it makes a sound:
Publication occurs when information is “placed before the public,” not when a member of the public reads the information placed before it. By Travelers’ logic, a book that is bound and placed on the shelves of Barnes & Noble is not “published” until a customer takes the book off the shelf and reads it. Travelers’ understanding of the term “publication” does not comport with the term’s plain meaning, and the medical records were published the moment they became accessible to the public via an online search.
Id. at 771.
On appeal, the Fourth Circuit “commended” the trial court for its “sound legal analysis,” but did not add more, including on the scope of the term “publication.” Noting that Virginia is an “eight corners rule” state and that the duty to defend is broader than the duty to indemnify, the appellate court referred to the trial court’s conclusion that “the class-action complaint ‘at least potentially or arguably’ alleges a ‘publication’ of private medical information by Portal that constitutes conduct covered under the Policies.” (Slip Op. at 6.) Thus, the trial court reasoned, the release of information on the Internet, if proven, “would have given ‘unreasonable publicity to, and disclose[d] information about, patients’ private lives,’ because any member of the public with an internet connection could have viewed the plaintiffs’ private medical records during the time the records were available online.” (Id.) Under the broad scope of the duty to defend, the Fourth Circuit could not disagree:
Put succinctly, we agree with the Opinion that Travelers has a duty to defend Portal against the class-action complaint. Given the eight corners of the pertinent documents, Travelers’s efforts to parse alternative dictionary definitions do not absolve it of the duty to defend Portal. [Citation omitted.] See Seals v. Erie Ins. Exch., 674 S.E.2d 860, 862 (Va. 2009) (observing that the courts “have been consistent in construing the language of [insurance] policies, where there is doubt as to their meaning, in favor of that interpretation which grants coverage, rather than that which withholds it” (quoting St. Paul Fire & Marine Ins. Co., 316 S.E.2d at 736)).
(Id. at 6-7.)
What this case means. Two years ago, I noted that this was a difficult case for an insurer to win. It was undisputed that the records were available on the Internet. Typically, when determining whether an underlying complaint alleges a “publication,” many courts look to dictionary definitions, which define the term to mean distribution to the public at large. That is what the trial court did here, and the Fourth Circuit agreed. Typically, the question of whether the material at issue was read is not asked or addressed.
The trial court rejected the contention that if material is not read, it is not published. In doing so, the court used a persuasive analogy of an untouched book on a shelf. The Fourth Circuit appeared to have no interest in delving into that question, at least in the context of the duty to defend. That is too bad because the argument does raise interesting issues, not the least of which is whether a ”publication” is just the release of information or also the consumption of it?