Friday, February 9, 2018

Telemarketing text-spam case gets the heave-ho

The Telephone Consumer Protection Act prevents telemarketers from sending unwanted texts to your cell phone without consent. If the Act is violated, you can actually bring a lawsuit over this. This case is dismissed because the plaintiff gave his consent.

The case is Latner v. Mount Sinai Health System, decided on January 9. In 2003, plaintiff went to a Mt. Sinai facility for a health checkup. He signed a form that gave the hospital consent to use his health information "for payment, treatment and hospital operations purposes." Eight years later, long after plaintiff most likely forgot that he had even signed the form, the hospital hired a third party to send out flu shot reminder texts. He then got a text message reminding him that it was time for a flu shot. In the face of this outrageous breach of plaintiff's privacy, he brought this putative class action.

As revised in 2012, the telemarketing rules said the texting party needs prior written consent for this kind of telemarketing. The consent rule does not apply to "wireless cell numbers if the call 'delivers a health care message made by, or on behalf of a covered entity or its business associate.'" The district court dismissed the case, and the Court of Appeals (Cabranes, Livingston and Goldberg [C.I.T.]) affirms.

Plaintiff loses the case because he provided his cell phone number to the Mt. Sinai facility in 2003, agreeing that the hospital could share his information for "treatment" purposes. "Considering the circumstances, we hold that Latner provided his prior express consent to receiving a single text message about a 'health-related benefit' that might have been of interest to him."

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