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Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Linda Kelleher v. City of Reading, et al.

2002 U.S. Dist. Lexis 9408 (E.D. Pa., May 29, 2002)

Computer Usage Policy Bars Reasonable Expectation Of Privacy

Court dismisses invasion of privacy claims advanced by plaintiff Linda Kelleher, City Clerk of Reading Pennsylvania, arising out of defendants' alleged dissemination to the Press of emails plaintiff sent and/or received from a City of Reading computer.  Kelleher had no reasonable expectation of privacy in the subject emails because the City's computer usage policy expressly advised that the City could access and disclose emails sent from its computer network.

Plaintiff asserted this claim in a lawsuit in which she also claimed that various governmental officials and/or entities harassed her in retaliation for her exercise of her First Amendment right of Free Speech.  This harassment allegedly included providing the Press with information that would discredit her, including an ethics complaint lodged against plaintiff, and a job related one week disciplinary suspension.   Kelleher claimed that such conduct violated her rights under 42 U.S.C. § 1983.  The Court granted defendants' motions for summary judgment and dismissed the complaint, finding, inter alia, that plaintiff had failed to establish either that she had, in fact, engaged in speech which could give rise to such claims, or that the defendants' conduct was motivated by their desire to retaliate against her as a result of the activities she claimed to have engaged in.  It is beyond the scope of the Internet Library to address plaintiff's 1983 claims.  As such, the balance of this article will focus solely on the invasion of privacy claims plaintiff asserted.

Dissemination Of Emails Sent And Received From Office Computer Does Not Invade Right Of Privacy

Plaintiff, a governmental official, asserted invasion of privacy claims against various governmental officials as a result of their alleged dissemination to the Press of both emails plaintiff sent and/or received on her office computer, and information concerning a one week disciplinary suspension she received.

Plaintiff's employer, the City of Reading, had a computer usage policy which advised its employees that the City could monitor and disseminate the contents of emails sent and/or received on City computers.  More particularly, this policy provided that:

Messages that are created, sent or received using the City's email system are the property of the City of Reading.  The City reserves the right to access and disclose the contents of all messages created, sent or received using the email system.  The Email system is strictly for official City of Reading messaging.

On defendants' motions for summary judgment, the Court dismissed plaintiff's invasion of privacy claims.

Under Pennsylvania law, on who intentionally 'intrudes upon the seclusion' of another is guilty of an invasion of privacy.  To establish such a claim, a plaintiff must demonstrate both that the defendant "intruded into a private place" and that this interference with plaintiff's seclusion "is both substantial and highly offensive to the ordinary person."  This, in turn, requires the plaintiff to establish that she had a reasonable expectation of privacy in the area allegedly invaded.

The Court held that the plaintiff had no such expectation in the emails at issue, because the City's computer usage policy expressly advised that such emails could be accessed and disseminated by the City.  Plaintiff was aware of this policy, having acknowledged receipt thereof in writing.  The absence of any reasonable expectation of privacy was underscored by the fact that the City had, in fact, previously exercised its rights under this policy by monitoring the email of another employee.  Finding plaintiff "did not have a reasonable expectation of privacy with respect to her e-mail" the court dismissed this branch of her invasion of privacy claim.

Plaintiff's remaining claim alleged that defendants had improperly given publicity to a private life.  This claim failed both because the facts in question - her temporary suspension from a governmental position - were not private, and because plaintiff failed to establish that the named defendant had in fact disseminated facts about Kelleher's disciplinary suspension to the Press.

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