In a recent unpublished opinion, the 11th Circuit Court of Appeals determined that a suit seeking damages for violation of FACTA (involving the issuance of a receipt to a customer that did not delete the last five digits of the credit card number) did not involve a “publication” of material and therefore did not trigger a defense obligation under the “personal and advertising injury” coverage. In E. T. Limited, Inc. v. Essex Ins. Co.,1:08-cv-22302-WJZ (applying Florida law), view, the insured posited that FACTA violations fell within the offense: “oral or written publication, in any manner, of material that violates a person’s right of privacy.” The insured argued that the term “publication” was ambiguous and that the phrase “in any manner” broadened its meaning to include the provision of a receipt. The Court of Appeals disagreed.
The Court held that “publication in any manner” was not ambiguous. Citing Penzer v. Transportation Ins. Co. , 29 So.3d 1000, 1005 (Fla. 2010), the Court stated: “publication means ‘communication (as of news or information) to the public: public announcement’ or ‘the act or process of issuing copies … for general distribution to the public.’” In finding that the insured’s issuance of a credit card receipt to the customer did not constitute a publication of private information, the Court reasoned that a receipt is a contemporaneous record of a private transaction between the retail operator and the customer. The court observed that ETL, the restaurant owner that was sued for the FACTA violations, neither broadcasted nor disseminated the receipt or the credit card information to the general public. “Indeed ETL provided the receipt only to the customer (who already knows the credit card number and its expiration date).”
The Court also observed that, unlike the unsolicited blast faxes at issue in Penzer, the aggrieved customer initiated the transaction by paying for his meal with a credit card. The Court concluded that “providing a customer with a contemporaneous record of a retail transaction involves no dissemination to the general public and does not constitute “publication” within the meaning of Essex’s Policy.”
The Court also rejected the insured’s position that the term “in any manner” expands the definition of “publication” to include the provision of a written receipt. It held: “the phrase ‘in any manner’ merely expands the categories of publication (such as email, handwritten letters, and, perhaps blast faxes) covered by the Policy. But the phrase cannot change the meaning of the underlying term ‘publication.’” Accordingly, the Court affirmed summary judgment in favor of the insurer.