Court: Okay For Trial To Move Forward Against ESPN For Tweeting JPP's Medical Chart
from the getting-the-finger dept
The Fourth of July is long in our rearview mirrors, but for some folks the holiday haunts them still. Such is the case with NFL football player Jason Pierre-Paul, who quite famously managed to celebrate our nation's independence by blowing apart a good chunk of his hand a year and a half ago. So too does the holiday likely remain top of mind for ESPN and its reporter, Adam Schefter, who found themselves in a bit of controversy after reporting on Pierre-Paul's condition and tweeting out a copy of the player's medical chart, revealing that he had no digits where there previously had been fingers. Pierre-Paul sued Schefter and ESPN for invading his privacy, arguing that he'd suffered great harm as a result and suggesting that, though Schefter had received the medical chart from a source, the publication of such information might make it less likely for other famous persons to seek medical treatment in the future. ESPN, meanwhile, attempted to spike the lawsuit on First Amendment grounds under an anti-SLAPP statute, arguing that journalists have always been free to provide evidence for stories gained from sources.
Well, the court has ruled against ESPN's attempt to have the suit dismissed, saying the lawsuit will proceed.
New York Giants defensive end Jason Pierre-Paul is suing ESPN and star reporter Adam Schefter over a tweet that revealed an amputated right finger as a result of a July 4 celebration last year. The NFL star asserts he suffered great damage when Schefter showed his four million followers a copy of Pierre-Paul's medical chart. But despite ESPN's First Amendment arguments, a judge on Thursday rejected ESPN's attempt to dismiss, according to a statement from Pierre-Paul's attorney.
ESPN, represented by the same lawyers that represented Gawker, argued that courts "have consistently recognized that a journalist is entitled to include visual evidence corroborating a report on a matter of public concern."
ESPN's lawyers also pointed out that Pierre-Paul is not suggesting that Schefter was prohibited from reporting on the exact details within the chart, which was the actual harming information if any harm actually was done, but that tweeting out the medical chart image itself suddenly was actionable. Why Pierre-Paul chose this attack on ESPN and a journalist rather than whatever source shared the chart with Schefter in the first place is largely left unaddressed, although the depth of the parties' respective pockets likely has something to do with it.
Regardless, this is a disappointing ruling on many levels. Those seeking medical attention certainly do have an expectation of privacy from those providing the healthcare work and one would think HIPAA violations may be in play here as well, but Pierre-Paul has no such expectation of privacy from a journalist covering him. The proper defendant in this case is obviously whomever provided the chart to Schefter and likely over HIPAA violations. Whatever the implications upon privacy at issue here, it seems quite clear that chilling the reporting of journalists who receive information from sources is not hte proper vector for addressing those issues. Between this and the Gawker case, along with the public comments by one well-known would-be politician, we seem to entering a different era in terms of how the press is viewed and treated in America.
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Filed Under: adam schefter, first amendment, hipaa, jason pierre-paul, journalism, medical reports, privacy
Companies: espn
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HIPPA does come into play
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Re: HIPPA does come into play
How is your argument different?
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Re: Re: HIPPA does come into play
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Re: Re: Re: HIPPA does come into play
I haven't yet seen a copy of the complaint myself, so I'm somewhat handicapped here.
Do you know if the tweet was attached or otherwise incorporated into the complaint? What I'm getting at is whether the actual contents of the tweet can be considered during the motion-to-dismiss stage?
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Re: Re: Re: Re: HIPPA does come into play
So, right now, it doesn't appear to me that the tweet was attached to the original complaint.
However, from p.3 of Defendant's Motion to Dismiss and Incorporated Memorandum of Law: I've now skimmed quickly through plaintiff's Plaintiff's Memorandum of Law in Response to Motion to Dismiss, looking for argument against considering the tweet at this stage. I didn't see any argument against it. Perhaps you can point it out for me?
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Re: HIPPA does come into play
If 'they should have known the source had broken the law' is enough grounds to strip a person/company's ability to report on something they are given the government and private companies would be able to completely shut down any whistleblowing activity, because often enough the one who originally obtained them and hands them over broke some law or violated some agreement of some sort to do so.
Yes whoever shared the original medical reports almost certainly violated HIPPA rules, so go after them for that, the ability to charge the ones who report on what they were given as though they were responsible for the original violation of the law opens up a huge can of worms, one you can be sure that both government and private companies would love.
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Re: Re: HIPPA does come into play
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Sorry armchair lawyers.
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Re: Sorry armchair lawyers.
It would also be a different matter if the journalist were claiming that JPP or his authorized representative had provided the medical chart, or at least that his source had claimed such. As far as I know the journalist hasn't, probably because that claim would be easily refuted and would put the journalist in an even worse spot than he's in now.
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Re: Re: Sorry armchair lawyers.
And anyone JPP gave access to willingly or through releases signed as part of the care.
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Re: Re: Re: Sorry armchair lawyers.
Other health-care providers, even if they have a release authorizing them access to the records, are governed by HIPAA when it comes to their handling of the records after they receive them and the releases don't and can't relieve them of that responsibility.
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Re: HIPPA does come into play
Schefter is not a health care provider.
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Re: Re: HIPPA does come into play
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Re: Re: Re: HIPPA does come into play
Secrecy is not a transitive property. Rather, as more people learn a so-called “secret”, the less secret it becomes. And the more the information becomes known to the public generally, the less legal protection it deserves.
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Re: HIPPA does come into play
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It only makes sense to me that the person who publishes that information (not just report on it) also be punished, not just the leaker. Otherwise, they can just bribe the right people into breaking the law for them to profit from it.
At least when it comes to private persons. I wouldn't hold the government to the same standard as it shouldn't have an expectation of privacy because they serve the public. I wouldn't be surprised in the least if ESPN lost that trial just like Gawker did.
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Re:
Is that right?
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Re:
If the precedent is set such that those that report on something can be held just as responsible as those that handed them the info both government and private companies/individuals will use it to crack down (even more) on those that air their dirty laundry for the public to see.
Something like the Snowden leaks would not have been possible with that precedent in place, as the newspapers would have been sued and/or tied up with so much red tape that they wouldn't have been able to publish more than one, maybe two articles before they were shut down.
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Re: Re:
These appeals to "common sense", as sensible as they always seem, are some of the most unfortunately insidious facets of the public's perception of justice systems.
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Uh oh
Oh this... this does not bode well.
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He's a professional football player. It was all factual information. Any potential employer is immediately know that he's missing fingers. No way to hide that one on a physical.
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UPDATE: Monday's written ruling
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Individuals have an expectation of privacy
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Third time's the charm?
The government and/or private companies already have numerous ways to make someone's life miserable, making it so that news agencies are treated no different with regards to handling potentially illegal/personal/classified information they are given than the person who handed it to them would be a gigantic boon to the government, not a bane. As I noted above you think the Snowden leaks would have lasted so much as a week if the government was allowed to treat reporting on classified document no different than violating the law/contract to leak them in the first place?
You might say that the situations are different but that's true only in the fine details, the underlying idea that reporters have to consider the legal status of what they're handed lest they be treated as though they themselves were no different than the one who broke the law in the first place to attain the private/classified information is pretty much the same, and one that stands to cause some serious harm if allowed to become the norm.
There's at least one person who is responsible for accessing the medical records and sharing them with ESPN, I've got no problem with going after them, but undermining the ability to report on things by forcing the reporters to be considered no different than the original lawbreakers stands to do far more harm than good, to the extent that there might not be another Snowden if that becomes the case, as no newspaper or reporting agency/individual will be willing to take the risk of reporting on what they're handed, no matter how damning it might be.
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Re: Third time's the charm?
Is that not good enough for a personal tragedy? Reading this story it sounds like an unfortunate accident occurred. Is there a criminal reason they are reporting on as to why he is missing fingers?
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Re: Individuals have an expectation of privacy
ESPN is governed by HIPAA? Since when?
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Re: Re: Individuals have an expectation of privacy
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Justice
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I believe the court's thinking is that ESPN disclosed it without proper authorization. Yes, they did obtain it, but again, they didn't have to DISCLOSE it. Yes the person that gave it to ESPN in the first place is also breaking the law, but ESPN is also not without fault In this one case.
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Details [was Re: ]
If the “super specific detail” is merely the tyranny of a MEDICAL RECORD — SENSITIVE label, then you're not really thinking. You're just reacting to labels. The government can slap down a TOP SECRET — SENSITIVE label on anything and everything. And they frequently do. Thoughtlessly. Comfortably.
So, are you merely reacting uncomfortably to a label, or can you point out one or more “super specific details” that the reporter should have redacted from the image? What exactly should have been censored with a black magic marker?
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Sympathy
ESPN is the biggest douche of all here, so it's not hard to see the courts finding against them. I am just surprised actually that no criminal charges are pending.
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Re: Sympathy
Now I do agree with Mike, this lawsuit is misguided. The one that should be prosecuted is the person who leaked the charts. ESPN could get a wrist slap yes but that's it.
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Re: Sympathy
Um, no. ESPN by definition cannot violate patient doctor confidentiality as they are neither the patient nor the doctor. Again, this is a matter of who the lawsuits sights ought be set upon, and it sure shouldn't be ESPN, which did it's journalistic duty.
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Re: Re: Sympathy
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Re: Re: Sympathy
So did Gawker.
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Re: Sympathy
If that's the extent of your argument, remember that the law is there to punish criminal activity, not "things you don't like" in general. If we went that way, remember that there is anyways someone somewhere who will think you're a douche too.
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Re: Sympathy
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Why should the press be treated differently than any other citizen, which if they did these things would be illegal.
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Target Effect of Fla. Shield Law
Which means, basically, that the most direct option for figuring out who gave up the file, asking the reporter via subpoena, is out. It's theoretically possible to find the leaker's identity through other means, but none are guaranteed.
So, if you're the player and you want someone to be held responsible, you sue ESPN. Either A) you win a bunch of money, or B) you get, as a condition of settlement, ESPN to narc out its source so you can chase after him.
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Re: Target Effect of Fla. Shield Law
This decision does not immediately circumvent the public policy expressed in Florida's journalist shield law.
Instead, I would expect that there'll be some motion practice on discovery issues (potentially handled by United States Magistrate Judge Edwin G. Torres) prior to motions for summary judgement.
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Re: Re: Target Effect of Fla. Shield Law
I was referring to two things, clearly less than eloquently:
1) Since there's a journalist shield law, the player can't file a "John Doe" suit against the leaker and subpoena ESPN or the reporter for his or her name. Any legal method of investigation to try to get around this might fail.
2) More speculatively, a way to get around the inability to subpoena is to file a Hulk Hogan-style privacy case. The player still can't legally compel ESPN or the reporter to disclose the names, but, with the threat of tort damages, the player can make ESPN "an offer it can't refuse": what's more important, a couple million worth of damages and legal fees, or a source who admittedly stole some medical records?
This might be a couple months down the line, possibly at summary judgment, when the parties have a more solid view of their relative positions.
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Mattshow... internet. Internet, Mattshow.
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