Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Defining Reasonable Care for the Protection of Personal Data

By Devin Chwastyk
March 01, 2020

The Pennsylvania Supreme Court enlivened the Thanksgiving holidays of privacy lawyers in 2018 with its decision in Dittman v. UPMC, 196 A.3d 1036 (Pa. 2018), which held that an employer has a legal duty to exercise reasonable care to safeguard employees' personal information (at least when such information is "stored by the employer on an internet-accessible computer system").

While the scope of the decision technically was confined to the employer-employee relationship, the court's reasoning implies that such a duty of reasonable care may arise in any scenario where one party engages in the collection of personal information, such as Social Security or financial account numbers, from another party, and the first party fails to implement adequate security measures to protect that information from a data breach. The common law duty recognized by the court does not seem bound exclusively to the employment context, and so the decision would seem equally applicable in any context, including that of any business and its customers. Indeed, as noted below, the Dittman decision has been cited in recent litigation arising out of merchant data breaches.

Procedurally, the Dittman decision addressed the preliminary objections to the plaintiff's class action complaint, and so the court did not examine UPMC's presumable defense that, indeed, it had exercised reasonable care by implementing adequate security measures, but nonetheless fell victim to a criminal hack of its systems. This is not a scenario where res ipsa loquitor or strict liability might apply, such that the occurrence of a data breach means the defendant must have been negligent.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

Legal Possession: What Does It Mean? Image

Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.

The Stranger to the Deed Rule Image

In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.