“Publication” has always been an important consideration under the Personal Injury prong of commercial general liability policies (“CGL”). Likewise, questions related to “publication” are growing in importance in litigation involving Illinois’ Biometric Information Privacy Act (“BIPA”). For example, Illinois courts have previously found that BIPA claims involving “publication” of biometric information to a third party may trigger coverage under the “personal injury” definition of CGL policies. And now, a recent Illinois Court of Appeals decision has found BIPA violations involving “publication” are subject to a one-year statute of limitations. This recent development may beg the question as to how multiple CGL policies can be triggered by BIPA publication claims when they are subject to a one-year statute of limitations.
On September 17, 2021, the Illinois Court of Appeals provided much-needed guidance on the proper statute of limitations for alleged violations of BIPA. In Tims v. Black Horse Carriers, Inc.,1-20-0563 (First Cir. Sept. 17, 2021), the Illinois Court of Appeals for the First District addressed the defendant’s argument that BIPA was subject to a one-year limitations period under section 13-201 while plaintiffs claimed BIPA was subject to a five-year statute of limitations under 13-205.
The Illinois legislature did not provide a specific statute of limitations for BIPA claims. Litigants have primarily argued two statute of limitations were applicable. First, 735 ILCS 5/13-201 entitled “Defamation – Privacy” provides “[a]ctions for slander, libel or for publication of matter violating the right of privacy, shall be commenced within one year next after the cause of action accrued.” Second, 735 ILCS 5/13-205) entitled “Five-year limitation” provides a catch-all for all “actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.”
The Tims court did not apply a single statute of limitations uniformly to all the violation subparts of BIPA. Rather, in determining which statute of limitations individually applies to the various violation subparts of BIPA, the Court of Appeal’s determination was driven by whether the claimed BIPA violation subpart involves publication:
A private party would violate section 15(a) by failing to develop a written policy establishing a retention schedule and destruction guidelines, section 15(b) by collecting or obtaining biometric data without written notice and release, or section 15(e) by not taking reasonable care in storing, transmitting and protecting biometric data. Id. at ¶ 31 (citing 740 ILCS 14/15 (West 2018)) (emphasis added).
The Tims court further noted “[a] plaintiff could therefore bring an action under the Act alleging violations of section 15(a), (b), and/or (e) without having to allege or prove that the defendant private entity published or disclosed any biometric data to any person or entity beyond or outside itself. Stated another way, an action under section 15(a), (b), or (e) of the Act is not an action ‘for publication of matter violating the right of privacy.’” Id. at ¶ 31 (quoting 735 ILCS 5/13-201 (West 2018)) (emphasis added).
In summary, the Court of Appeals found the following statute of limitations apply to BIPA claims:
|BIPA Violation Subpart||Controlling Statute of Limitation||Statute of Limitation|
|15(a): “A private party would violate section 15(a) by failing to develop a written policy establishing a retention schedule and destruction guidelines…”||Section 13-205 governs actions under section 15(a).||5 years|
|15(b): A party violates “section 15(b) by collecting or obtaining biometric data without written notice and release…”||Section 13-205 governs actions under section 15(b).||5 years|
|15(c): A party is prohibited from selling, leasing, trading or otherwise profiting from a person’s biometric information.||Section 13-201 governs actions under section 15(c).||1 year|
|15(d): A party is prohibited from disclosing or other disseminating biometric information.||Section 13-201 governs actions under section 15(d).||1 year|
|15(e) A party would violate “section 15(e) by not taking reasonable care in storing, transmitting, and protecting biometric data.”||Section 13-205 governs actions under section 15(e).||5 years|
Of course, insurance coverage was not at issue in the Tims decision. It will be interesting to see how this decision, which limits the BIPA claims involving “publication,” impacts insurance coverage. Of course, the Illinois Supreme Court has found coverage for BIPA claims under the “personal injury” definition of CGL policies because of publication to third parties. See, West Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc., 2021 IL 125978 (May 20, 2021). Therefore, insurers may be able to argue only one CGL policy has been potentially triggered when the BIPA publication claims are subject to a one-year statute of limitation.
This decision also misses another important aspect to determining insurance coverage for BIPA claims—accrual of the claim. While the Tims decision will offer some clarity as to the important issue of the proper statute of limitations for these claims, it left one rock unturned. Importantly, the Tims court did not address when a biometric claim accrues. Therefore, it is still unclear whether repeated conduct gives rise to a single BIPA violation or if each new violation gives rise to a new BIPA claim. While this issue causes problems on the defense side of BIPA cases, this issue is equally important when analyzing insurance coverage for BIPA claims as violations potentially span a number of policy periods.
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