Footnote to Councilman: no action for malicious prosecution

Court dismisses civil suit brought by defendant in high-profile ECPA case

If you track court cases dealing with the Internet, you may be familiar with last month’s First Circuit decision in the case of U.S. v. Councilman, 418 F.3d 67 (1st Cir. 2005), which held that interception of e-mail messages in temporary storage is a criminal violation of the Electronic Communications Privacy Act. [More on U.S. v. Councilman]

The defendant in that case, Bradford Councilman, filed a separate civil lawsuit against two of his former employees, claiming that they made false statements to the police which led to Councilman’s arrest and indictment for unlawfully intercepting e-mail messages. Councilman alleged causes of action for malicious prosecution, abuse of process, and intentional infliction of emotional distress. The case had been proceeding in federal court, but was dismissed last week.

The court held that Councilman’s malicious prosecution claim failed because the police had already initiated a criminal investigation before contacting the defendant former employees. The defendants, by providing information about Councilman (whether accurate or not) did not initiate the prosecution. Their statements to the police were therefore privileged under Massachusetts law, and they could not be liable for any of the tort claims Councilman had brought against them.

It is important to note that a necessary element in a civil action for malicious prosecution is that the underlying criminal action, wrongly initiated, ended in a favorable disposition for the accused. Had the court found that the former employees did “initiate” the prosecution, the matter would have been thrown into a problematic situation, given last month’s First Circuit decision which reversed the dismissal of the indictment against Councilman. The court briefly commented on this notion, observing that “it cannot be said at this time that the prosecution has terminated in favor of the plaintiff.”

Councilman v. Alibris, Inc., — F.Supp.2d —, 2005 WL 2225802 (D.Mass., September 13, 2005).