The Connecticut supreme court found that a policy covering damage caused through the publication of private material was not triggered because there was no proof that the information on the lost tapes was ever accessed by anyone.

In 2007 a cart holding computer tapes fell out of the back of a transportation contractor’s van onto a highway. About 130 of the tapes were removed from the roadside by an unknown person. The tapes contained personal information about past and present IBM employees including social security numbers, birthdates and contact information. The insured claimed that the sensitive information was “published” to the thief.

The court said: “Regardless of our precise definition of publication, we believe that access is a necessary prerequisite to the communication or disclosure of personal information. In this regard, the plaintiffs have failed to provide a factual basis that the information on the tapes was ever accessed by anyone.” The information could not be read by a personal computer and there was no evidence that any IBM employee had suffered any injury to personality rights.

When the Protection of Personal Information Act comes into force in South Africa the same result would follow in relation to damages. That does not mean that the Information Regulator cannot impose a fine for losing the information. The insurers may see that as an opportunity for insuring fines inadvertently incurred.

[Recall total Information Management Inc. v Federal Insurance Co, case number AC34716, Connecticut Appellate Court]