Once Again, Court Says If There's No Real Harm, There's No Legal Recourse For Privacy Breach

from the why-doesn't-that-apply-elsewhere? dept

Way back in 2006, we noted a series of cases where people had brought lawsuits over claimed "privacy" breaches, involving lost or leaked data, where the courts repeatedly ruled that if there was no evidence that the leaked data was used for nefarious purposes, there was no case. Odd that this applies to things like privacy, but when you see a similar situation with copyright, no one ever has to show any actual harm. Either way, it looks like courts are continuing to follow this particular line of thought, as a lawsuit against Gap for losing private data has been rejected under the same line of thinking. This also almost certainly means that all those class action lawsuits against Google for possibly collecting some WiFi data, are completely dead in the water. In those cases, the plaintiffs don't even show any evidence that their data was collected, let alone give any proof of harm.


Reader Comments (rss)

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  1.  
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    Anonymous Coward, Jun 7th, 2010 @ 3:12am

    Where the hell are last Monday's posts? I can't find any.

     

    reply to this | link to this | view in thread ]

  2.  
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    Beverly Crandon, Jun 7th, 2010 @ 3:48am

    Google may be different

    With much government agency chatter about Google's so called 'monopoly ', privacy issues may not go away as easy for them. We should also remember that many of the countries where privacy suits exist for Google are also areas where groups have lobbied government, for some reason or other, to close down Google.
    Don't get me wrong - I don't agree at all, but just sayin' that Google may have a harder time when it comes to putting privacy issues to bed.

     

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  3.  
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    Anonymous Coward, Jun 7th, 2010 @ 4:26am

    No harm no foul. In the case of copyrights, its much more difficult to show harm and the court may just assume it. Common law and statutory law is different for torts and intellectual property.

     

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  4.  
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    fogbugzd (profile), Jun 7th, 2010 @ 5:54am

    Re:

    Last Monday was a major US holiday, so "weekend rules" probably applied. In other words, no new blogs are posted, but people can still comment.

    I am guessing that you didn't notice until you sat down to write your monthly report about how many AC astroturf and FUD posts you made on your employer's behalf each day.

     

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  5.  
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    out_of_the_blue, Jun 7th, 2010 @ 6:31am

    Public loses rights in both examples.

    Just look for the common element and there's no contradiction: police state is moving ahead in both areas.

     

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  6.  
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    abc gum, Jun 7th, 2010 @ 6:47am

    The Gap & others like them

    Yep - no harm, no foul.
    And there is no reason for the leak to be addressed by those in a position to fix it because apparently it is not a problem and therefore not something to spend any hard earned cash upon.
    Business as usual, damn the poor security, full speed ahead.

     

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  7.  
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    Peter (profile), Jun 7th, 2010 @ 6:55am

    why damages are available for copyright infringement without proof of harm

    If the legislature sees fit to allow damages even in the absence of proof of harm, it can do so. And Congress has done so in the Copyright Act. There is no statutory provision for damages in the absence of proof of harm for the privacy violations that are the subject of the post. Thus, the default legal rule applies: no proof of harm, no damages (or, as AC#2 has it: no harm, no foul).

     

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  8.  
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    WammerJammer (profile), Jun 7th, 2010 @ 7:29am

    No Gap Crap

    Don't shop there! Ignore them. If you don't like a companies actions, boycott them. That shouldn't be hard with the Gap! My 2 kids call it Gap Crap here in California and would rather wear Target than to be caught in uncool Gap clothes. So who shops there anyway?
    I agree with the general consensus on this blog about No Harm, No Foul. Of course if you can prove harm in any way you have a case.
    In the case of copyrights: The copyright is supposed to protect your right to earn income from your copyrighted work. Of course this is not the only right you receive but that is enough to make the court take notice in a Capitalist society. Any loss of income for any reason is grounds for suit.

     

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  9.  
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    Anonymous Coward, Jun 7th, 2010 @ 7:39am

    Re: why damages are available for copyright infringement without proof of harm

    It seems to me that a requirement to show a NET monetary harm in order to allow monetary damages would be a good fix for many copyright problems. So if I start a bootleg publishing service I can (and should be) sued big time. On the other hand, if I quote you in my own writing, or sample your music for my own derivative art it would be hard to demonstrate monetary harm, especially if my work draws attention to your work and generates more sales for you. Including the net monetary reward would encourage people to cite and give credit for the work that inspired them.

     

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  10.  
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    Anonymous Coward, Jun 7th, 2010 @ 7:40am

    "This also almost certainly means that all those class action lawsuits against Google for possibly collecting some WiFi data, are completely dead in the water."

    I think if a corporate trade secret was leaked by an individual harm would almost certainly be assumed. The key here involved who is being protected and who is not. Copyright is mostly for evil rich corporations so the judges tend to favor it. Personal privacy breach suits against a big corporation to protect individuals isn't likely to lead anywhere. Google, which is hated by most big corporations, might be a different story. Yes, the courts will find other excuses and reasons, but the reason the judgments may reflect my opinion is simply because there truly is a double standard. But the judges obviously won't admit it. Remember, the corporation (criminal) has more rights than the individual.

     

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  11.  
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    Anonymous Coward, Jun 7th, 2010 @ 7:40am

    Re:

    the victim *

     

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  12.  
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    Anonymous Coward, Jun 7th, 2010 @ 7:43am

    Re:

    If harm is much less likely for copyright then it should be much more difficult to show harm.

     

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  13.  
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    Anonymous Coward, Jun 7th, 2010 @ 7:45am

    Re: The Gap & others like them

    "And there is no reason for the leak to be addressed by those in a position to fix it"

    Exactly, these court decisions are bad ones because they give corporations less incentive to implement security measures ensuring that critical private personal data isn't leaked.

     

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  14.  
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    abc gum, Jun 7th, 2010 @ 8:13am

    Re: No Gap Crap

    "If you don't like a companies actions, boycott them."

    This is true in a market where there is competition ....

     

    reply to this | link to this | view in thread ]

  15.  
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    fogbugzd (profile), Jun 7th, 2010 @ 8:46am

    Re:

    >>I think if a corporate trade secret was leaked by an individual harm would almost certainly be assumed.

    There are several problems that would make even the leak of a trade secret claim hard to enforce.

    1) To enforce a trade secret claim you usually have to demonstrate that you made reasonable efforts to keep the information secret. Putting unencrypted data out over an unsecured wifi connection would seem to be prima facia evidence that the company failed this test.

    2) The data was picked up during a van driving by. It is likely that only some isolated packets are picked up. A chuck out of the middle of a document is most likely to be of limited usefulness.

    3) If google just captured the data, dumped it on a hard drive, and never used the data then it would be hard to prove that any harm was done. Google didn't even realize that it had the data. Ironically, the damage would actually result from governments demanding that Google turn over the documents. Now a freedom of information type of request or a grandstanding politician could put it out in the public forums. Governments should have just asked Google to destroy the information. Of course, that ends the media gravy train for the politicians.

     

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  16.  
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    Anonymous Coward, Jun 14th, 2010 @ 8:51pm

    Re: Re:

    I don't post FUD posts for anyone. I mostly agree with what Techdirt posts in the way of opinions. You must have me confused with a different anonymous poster.

    As for a major holiday, I noticed none. It was business as usual that day.

     

    reply to this | link to this | view in thread ]

  17.  
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    JJ, Jun 14th, 2010 @ 10:37pm

    Re: Re: Re:

    > As for a major holiday, I noticed none. It was business as usual that day.

    http://en.wikipedia.org/wiki/Memorial_Day

     

    reply to this | link to this | view in thread ]

  18.  
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    sprearson81 (profile), Jun 9th, 2012 @ 6:58am

    Wish it was a holiday.

     

    reply to this | link to this | view in thread ]


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