Articles Posted in Commercial Law

On February 1, 2023, the Indiana Court of Appeals affirmed the grant of summary judgment for Community Hospital of Anderson and Madison County (the “Hospital”), holding that Rubendall’s claims for negligence and invasion of privacy based on public disclosure of private facts failed as a matter of law pursuant to the Indiana Supreme Court’s decision in Community Health Network v. McKenzie, 185 N.E.3d 368 (Ind. 2023). Rubendall, on behalf of herself and similarly situated individuals, alleged that the Hospital’s use of an email-to-paper messaging system that transmitted protected health information of patients between Community departments using an unencrypted format over open radio airwaves invaded their privacy because a local news reporter was able to intercept and decode the transmissions (and informed Rubendall of such) by using freely available online software. Chief Judge Altice of the Court of Appeals affirmed the  summary judgment in favor of Community holding that the negligence claim seeking emotional distress damages fails to satisfy either the required modified impact rule or the bystander rule because the plaintiff did not have any physical impact.  The Court also held that public disclosure of a private facts claim, recognized as an actionable claim for the first time in McKenzie, failed to satisfy the publicity element because Community’s transmission of the protected health information through open radio airwaves between its departments was not disclosed “to, or in a way that was sure to reach, the public or a large number of people.” While the Court found in Community Hospital’s favor, this is stark reminder of need to use the most up to date technology to protect private information in health care and other settings.

James A. L. Buddenbaum has practiced law for more than 25 years with Parr Richey representing municipalities and businesses in utility, healthcare and general business sectors in both regulatory and transactional matters. Jim also has extensive experience in representing businesses in making large property damage and similar insurance claims.

The statements contained here are matters of opinion for general information purposes only and should not be considered by anyone as forming an attorney client relationship or advice for any particular legal matter of the reader. All readers should obtain legal advice for any specific legal matters.

On Thursday, Oct. 24, the Indiana Supreme Court answered a vital question surrounding online fantasy sports sites: Does a fantasy sports  site need permission before it uses a player’s name and statistics in its online fantasy game? The Indiana Supreme Court answered no to this question, falling in line with the national trend of decisions favoring sports betting.

Former collegiate athletes Akeem Daniels, Cameron Stingily, and Nicholas Stoner brought a class-action suit against FanDuel, Inc. and DraftKings, Inc., claiming that the use of their names and likenesses in the defendants’ online fantasy sports game violated plaintiffs’ right to publicity under Ind. Code § 32-36-1-8(a). Daniels, No. 18S-CQ-00134 at 3. Indiana’s right of publicity statute generally prohibits the use of a person’s name or likeness for commercial gain without the consent. Id. at 4. Defendants removed the case to federal court, and then filed a motion to dismiss, asserting that their use of plaintiffs’ names and likeness fall within one of the statutes various exceptions. Id. at 3. Specifically, Defendant’s asserted that plaintiffs’ permission was not required because the information used on their site fell within the “political or newsworthy” exception, as well as the “public interest” exception to the statute. Id. at 5. The Southern District of Indiana dismissed plaintiffs’ suit, finding that both of these exceptions applied. Id. at 3. Plaintiffs appealed to the 7th Circuit. Id. Because case law applying Indiana’s right to publicity statute was sparse, the 7th Circuit certified the question to the Indiana Supreme Court, asking if an athlete’s permission is required in this circumstance. Id.

The Indiana Supreme Court’s opinion addresses only one of the two exceptions asserted by the defendant: the “political or newsworthy” exception. Id. at 5. This exception provides that the right of publicity does not require plaintiffs’ permission if their names and likenesses are used in “material that has political or newsworthy value.” Id. (citing I.C. §32-36-1-1(c)(1)(B)). The Supreme Court determined that the term “newsworthy” should not be limited solely to current events, but should be interpreted broadly to include “all types of factual, educational, and historical data…concerning interesting phases of human activity.” Id. at 8. The court determined that defendants’ use of plaintiffs’ information fell within this broad exception. Id. It analogized the defendants’ service to the publication of player names and stats in newspapers and websites across the nation, and reasoned that defendants’ service should not be treated differently simply because they created a new, innovative way to profit off of such publication. Id. at 9.