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Canadians File Foolish Lawsuits Too

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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8 Responses

  1. A.J. Sutter says:

    While I’m agnostic about the merits of the lawsuit, and can certainly see the irony of opening a facebook page to defend one’s privacy, I’m not sure her feeling of injury is prima facie so unreasonable. After all, what was the situation before the unannounced consolidation? Maybe the spouses had chosen to have unconsolidated bills, in order to give each other some privacy. Maybe her husband could have accepted the possibility of her having an affair as long as he didn’t know about it, or even if he did, but it was the particular counterparty or other circumstances in this case (ascertainable with help from the phone bill) that led to the breakup. One should not be so quick to judge any marriage not one’s own. As one gets older, one may find oneself wishing such forebearance, or compassion, from others, too.

  2. stb says:

    Thanks, Dave. This post made my day…yeah, it’s been that kind of day.

  3. Dissent says:

    I’m a bit surprised by your response, Dave. Rogers may not be responsible for a bad marriage, but they should be responsible for protecting their customer’s personal information and records if they say they will, right?

    We’ve been discussing this case over on my blog, too, and some of us tentatively agree with Nagy. If the facts are as she alleges — that Rogers took her account, which was under her name and sole control and that she paid for, and bundled it with another account without her request or authorization — then she may have some valid basis to complain.

    On what basis does Rogers take someone’s account and add it to someone else’s without their authorization and then reveal their phone records to another party? Keep in mind that the husband has reportedly claimed that he never requested the change, either.

    I think Rogers’ statement may be an attempt to deflect the issue of customer privacy and data protection to the issue of her conduct.

  4. Dave Hoffman says:

    My position is (1) that your reasonable expectation of privacy when dealing with a commercial counterparty is very, very limited; (2) in part, those limits are socially constructed; (3) individuals should and do not have an expectation that they get to keep infidelity private, given that it is socially harmful and, until quite recently, illegal; (4) I appreciate A.J.’s warning – though I prefer judgment to relativism – and yet ultimately that debate is irrelevant to the question of whether society ought to recognize a privacy interest for this kind of social nefarious conduct.

  5. Dissent says:

    So if a commercial entity enters into a contract with you and their privacy policy says:

    “Unless you provide express consent, or disclosure is required pursuant to a legal power, all information regarding you kept by us, other than your name, address and listed telephone number, is confidential and may not be disclosed by us to anyone other than:
    • you;
    • a person who, in our reasonable judgment, is seeking the information as your agent;”

    Are you saying that the customer has no reasonable expectation of privacy and no reasonable expectation that their account won’t be turned over to someone else?

    I don’t mean to sound argumentative because that’s not how I’m feeling. I’m just really surprised at your view and am trying to understand it.

    Suppose Nagy had a medical condition that she did not want her husband to know about and had been on the phone with a doctor. And suppose her husband found out about her medical condition because of what the carrier did. Would you still view it as a foolish lawsuit?

    I can see the morality issue mitigating the amount of any judgment, but I don’t see where the immorality lessens the carrier’s responsibility to adhere to their privacy policy.

  6. A.J. Sutter says:

    Dissent’s immediately preceding post articulates the issue well, in distinguishing the degree of damage from the existence of a harm. Even apart from a privacy policy per se, the choices and opt-outs previously provided to the couple for consolidating their accounts (which might or might not have been subsumed into a privacy policy) are also relevant.

    And certainly it’s problematic to claim that there is never a reasonable expectation of privacy for acts that are socially harmful (however that is to be judged) but not illegal. Abortion was once illegal, and many claim it is socially harmful (with much more gusto than the rather skeptical article about the harmfulness of adultery to which Dave has linked), yet it would be hard to claim there aren’t privacy rights implicated in it. There are other categories of socially harmful acts to which there is a reasonable expectation of privacy when confided to a doctor whom one is paying (including a psychiatrist), including even past crimes. There are also plenty of socially harmful things that can be said over the phone, and that can result in divorce or worse (lifelong psychological damage to children, e.g.) but that are neither criminal nor related to adultery. How shall we go about stripping these perpetrators of social harm of their privacy expectations?

    BTW a point of view that considers the moral qualities of an action in light of its circumstances or consequences, rather than attaching a per se label of nefariousness or assertion of harm, is situationalist or consequentialist, respectively, not necessarily relativist. It is possible to have non-relativist views consistent with these, e.g., that in certain circumstances, adultery is never excusable or forgivable, while in others it might be one or both.

  7. Dave,

    Are you advocating a morality exception to contracts? If a person does something that is deemed immoral by many people, does this mean that the contract is unenforceable? I’m surprised you seem to be arguing for some very radical changes to contract law.

    In your response to Dissent, you write: “your reasonable expectation of privacy when dealing with a commercial counterparty is very, very limited.”

    Really? Even if the commercial party has explicitly promised you privacy or put it in a contract? Does contract law work differently in the privacy context? I’m really confused about your argument here.

    You also write: “individuals should and do not have an expectation that they get to keep infidelity private, given that it is socially harmful and, until quite recently, illegal.”

    Do you believe this even if there is a contract establishing confidentiality?

    Finally, you appear to be saying that there should be no reasonable expectation of privacy in immoral (or illegal) conduct. If that’s what you’re arguing, then it sure would be an enormous change to the Fourth Amendment, which protects privacy often when individuals are trying to conceal criminal activity.

    Does this mean that if X is having an affair in his own home, and a news crew batters down X’s door and bursts into the house, that’s not tortious because X is engaged in immoral conduct? Does that mean that if Y wiretaps X engaging in illicit conversations with his mistress then Y shouldn’t be liable under wiretap law?

    In short, I’m really confused about what you’re arguing.

  8. Dave Hoffman says:

    I responded to some of these interesting comments in a new post, but not all of them. I’m going to try to get up a new post in the next few days responding to our great commentators Dissent and A.J. Sutter, in particular. But if I don’t, let this serve as a brief placeholder:

    (1) I think that it’s useful to distinguish a contract claim from a tort claim – -the former is limited both by the kinds of enforceability doctrines that I discussed in my post and the general contract law limitations of forseeability, certainty, emotional distress, etc. Dissent thinks that it’s possibile to believe that she had a reasonable expectation but no damage; I agree in theory. But I don’t think that most people would believe that you have a measurable & reasonable expectation of privacy against disclosure to your spouse in this context. Reasonableness, after all, has a social dimension.
    (2) Implicit in my view is that reasonable privacy expecations run betweeen individuals/entities, and don’t float freely free of context. Thus, I do think that you could imagine a very different case looking at government actors, or with a different kind of information disclosed. There’s something special in contract law – at least in the contract law I know about in US courts – when it comes to the marriage relationship.
    (3) As to AJ’s point about relativism, I entirely agree. I was trying, too quickly no doubt, to reject the force of AJ’s claim that you “should not be so quick to judge any marriage not one’s own.” That’s true (I would delete the word “so” before quick, though). But it doesn’t mean that the law (writ large) as expressed through contracting rules can’t take a position on whether husbands and wives should be able to sue to recover money for failing to retain the ability to cheat.

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