Daniel’s Law Actual-Damages Liability Requires No Mens Rea Under N.J.S.A. 56:8-166.1(c)(1)

Case: Atlas Data Privacy Corp. v. We Inform, LLC (Supreme Court of New Jersey, Aug. 12, 2026) — Certified question from the Third Circuit.

1. Introduction

Atlas Data Privacy Corp. v. We Inform, LLC arrived at the New Jersey Supreme Court on a certified question of law from the United States Court of Appeals for the Third Circuit: “What mental state, if any, is required to establish liability under Daniel’s Law, N.J.S.A. 56:8-166.1?”

The plaintiffs included Atlas Data Privacy Corporation (Atlas), an entity offering an online service to help individuals covered by Daniel’s Law send takedown notices, as well as individually named New Jersey police and correctional officers. Defendants spanned multiple industries (including alleged data brokers/aggregators, real estate businesses, and direct-mail/marketing companies). Plaintiffs alleged defendants continued to disclose covered persons’ home addresses and/or unpublished phone numbers after receiving notices to cease disclosure.

The federal district court (in consolidated/related matters) denied defendants’ motions to dismiss, reasoning that a strict-liability construction could raise constitutional problems and predicting the statute was “reasonably susceptible” to a negligence standard based on analogy to privacy tort doctrine. The Third Circuit—facing a facial First Amendment challenge—certified questions because New Jersey interpretive principles appeared to pull in different directions: constitutional avoidance on the one hand, and the Court’s reluctance to “read in” a missing mens rea on the other (citing State v. Pomianek).

2. Summary of the Opinion

The Court answered the certified question narrowly and textually: no mental state is required for actual-damages awards under N.J.S.A. 56:8-166.1(c)(1).

Key holdings and clarifications:

• Plain text controls: N.J.S.A. 56:8-166.1(c)(1) contains no mens rea requirement, while the immediately following punitive-damages provision, N.J.S.A. 56:8-166.1(c)(2), expressly requires “willful or reckless disregard of the law.”
• Legislative amendments reinforce intent: the Legislature included “reasonable person” language in 2020 (akin to negligence) but removed it in 2022, implying a purposeful change.
• No importation of privacy-tort standards: the Court rejected the argument that Daniel’s Law should be read as codifying (or tracking) the common-law tort of public disclosure of private facts.
• No constitutional ruling: the Court emphasized that the constitutionality of Daniel’s Law was not before it; that question remains for the Third Circuit.

3. Analysis

3.1 Precedents Cited

The Court’s reasoning is a composite of (a) core New Jersey statutory-interpretation doctrine and (b) separation-of-powers limits on judicial “repair” of statutes—particularly where mens rea is missing.

Text-first interpretation and use of extrinsic aids

• Bosland v. Warnock Dodge, Inc. and McGovern v. Rutgers framed the “ultimate task” as effectuating legislative intent, beginning with statutory text.
• DiProspero v. Penn anchored the Court’s insistence that the “best indicator” is the statutory language, read in context “as a whole.”
• Morristown Assocs. v. Grant Oil Co. (quoting State v. Marquez) supplied the pivot: if language is ambiguous, courts may consult legislative history—an opening the Court used chiefly to confirm what the text already signaled.
• In re Commitment of W.W. supplied a key inferential tool: a “change of language” ordinarily implies a purposeful alteration in substance—central to the Court’s reliance on the Legislature’s deletion of “reasonable person” language in 2022.

Express inclusion / intentional omission

• State v. Higginbotham (quoting Ryan v. Renny) provided the interpretive canon that where the Legislature includes limiting language in one part but omits it elsewhere, the omission is presumed intentional. This was decisive: N.J.S.A. 56:8-166.1(c)(2) includes “willful or reckless disregard,” while (c)(1) does not.
• State v. Hoffman (as used in Higginbotham) supported the Court’s refusal to “import” limiting language into a subsection from neighboring subsections.

Constitutional avoidance and the limit on judicial rewriting

• State v. Carter reiterated New Jersey’s constitutional-avoidance principle (“If a statute is susceptible to two reasonable interpretations, one constitutional and one not…”).
• State v. Pomianek imposed the counterweight: courts may not “rewrite” statutes to add a state-of-mind requirement absent from the text. The Court invoked Pomianek to draw a firm line between permissible construction and impermissible “judicial transplant,” especially where the Legislature has shown it knows how to add mens rea elsewhere.
• The Court also noted the Third Circuit’s citation to Pomianek as the source of the tension that prompted certification; the Court resolved that tension by declining to add any mens rea to (c)(1), while reiterating that any constitutional fallout is for the federal court.

Common-law backdrop and privacy tort doctrine (rejected as an interpretive driver)

• The district court’s privacy-tort analogy relied on Romaine v. Kallinger. The New Jersey Supreme Court discussed the tort more comprehensively via G.D. v. Kenny (elements of public disclosure of private facts) and referenced the broader “four privacy torts” framework drawn from Friedman v. Martinez (quoting Prosser).
• The Court also referenced Rumbauskas v. Cantor (quoting Canessa v. J. I. Kislak, Inc.) to emphasize that privacy torts are grouped by name but differ significantly in elements—supporting the Court’s skepticism of treating Daniel’s Law as a tort codification.
• For related privacy standards, the Court cited Bisbee v. John C. Conover Agency, Inc. (intrusion/appropriation principles) and again Romaine (false light elements, Restatement alignment).
• On when common law can inform statutes, the Court contrasted: Maison v. N.J. Transit Corp. (statute used a common-law term—“negligence”—so common-law meaning applied); Marshall v. Klebanov (quoting Oswin v. Shaw) (strict construction for statutes in derogation of common law); Evans-Aristocrat Indus., Inc. v. City of Newark (statute had strong common-law origins); and Hardwicke v. American Boychoir School (statute reinstated a common-law doctrine).
• The Court found none of those “common-law origins/codification” triggers present for Daniel’s Law—so tort standards could not be imported to supply a missing mens rea.

Federal constitutional backdrop (context only)

• The district court’s First Amendment analysis invoked Florida Star v. B.J.F.. The New Jersey Supreme Court acknowledged the constitutional-chilling concern motivating certification but refused to decide constitutionality on a certified-question posture limited to statutory meaning.
• The parties referenced State v. Comer in briefing to argue about interpretive approach; the Court did not resolve the certified question by relying on Comer, instead grounding the outcome in text, structure, and amendment history.

3.2 Legal Reasoning

The Court’s reasoning proceeds in three principal moves.

(1) Structural inference from adjacent subsections

The Court treated N.J.S.A. 56:8-166.1(c) as a deliberate remedial scheme. Actual damages under (c)(1) are mandatory (“shall award”) and contain no mental state. Punitive damages under (c)(2) are available only “upon proof of willful or reckless disregard of the law.” Applying State v. Higginbotham, the Court inferred intentional omission: where the Legislature wanted mens rea, it wrote it.

(2) Cross-statute comparison within Daniel’s Law demonstrates legislative deliberateness

The Court bolstered the inference by pointing to other Daniel’s Law provisions that expressly impose mental states: N.J.S.A. 2C:20-31.1(b) (criminal provision requiring purposeful or reckless conduct) and N.J.S.A. 47:1-17 (government agencies “knowingly” making information available). The Court used State v. Pomianek to frame the interpretive significance: mens rea included in some parts signals a pointed choice to omit it elsewhere.

(3) Amendment history: deletion of “reasonable person” language and consolidation of relief

The opinion treated the 2020-to-2022 transition as especially probative. The 2020 version of N.J.S.A. 56:8-166.1(a) prohibited disclosure “under circumstances in which a reasonable person would believe” it would expose another to harassment or risk of harm. The 2022 amendments removed that “reasonable person” formulation and replaced the prior dual-track civil relief (including repealed N.J.S.A. 56:8-166.2) with a consolidated notice-and-compliance model. Under In re Commitment of W.W., the Court treated that deletion as a purposeful substantive change.

Crucially, the Court rejected the Attorney General’s effort to recharacterize the statute’s notice requirement and 10-business-day compliance window as an implied negligence (“reasonable care”) proxy. Notice is a procedural trigger; it does not itself define fault. The Court emphasized that a party could act reasonably yet still miss the deadline (e.g., volume of requests), underscoring why a timing requirement is not synonymous with a negligence standard.

(4) Rejection of tort-law “importation”

The district court analogized Daniel’s Law to the tort of public disclosure of private facts. The Supreme Court responded by comparing the statute to the tort’s elements (as articulated in G.D. v. Kenny) and finding no fit: the statute does not ask whether the information is “actually private,” whether publication would be “offensive to a reasonable person,” or whether the public has a “legitimate interest.” Nor does the statute use terminology that invokes a common-law definition (contrast Maison v. N.J. Transit Corp.).

That mismatch mattered for institutional reasons: importing tort standards to supply an unexpressed mens rea would, in effect, be judicial rewriting—particularly problematic where the Legislature had once used “reasonable person” language and then removed it.

(5) Constitutional avoidance was not applied to add mens rea

Although the Attorney General urged a constitutional-avoidance “surgery” to preserve the statute, the Court drew a procedural boundary: it was answering only the certified statutory question, not adjudicating constitutionality. Moreover, Pomianek served as a warning that adding mens rea can cross from construction into impermissible rewriting.

3.3 Impact

Immediate doctrinal impact in New Jersey

• Actual-damages exposure is mens rea-free once statutory conditions are met: The decision clarifies that plaintiffs seeking actual damages under N.J.S.A. 56:8-166.1(c)(1) need not prove negligence, knowledge, recklessness, or purpose; liability turns on the statutory violation (including the notice-and-10-business-day framework) rather than a fault inquiry.
• Sharp remedial bifurcation: Actual damages under (c)(1) require no mens rea; punitive damages under (c)(2) require “willful or reckless disregard of the law.” The Court’s reading makes (c)(2) function as the statute’s primary “fault gate,” not (c)(1).
• Statutory-interpretation signal: The opinion strengthens the Court’s pattern of treating mens rea omissions as intentional where the Legislature demonstrated mens rea awareness elsewhere (a Pomianek-style inference beyond the criminal context).

Practical and litigation impact

• Compliance incentives and systems: Entities receiving notices from authorized persons have heightened incentive to operationalize rapid takedown workflows, documentation, and audit trails because fault-based defenses do not apply to actual damages as a statutory element.
• Higher settlement leverage and aggregated claims: Because liquidated damages are “not less than” $1,000 per violation, mens rea-free actual damages can magnify exposure in multi-notice, multi-person, or assignee-driven enforcement models (Atlas’s business model is part of the factual backdrop).
• Constitutional litigation remains live: The Court expressly left to the Third Circuit whether the absence of a mental state in a speech-adjacent restriction produces unconstitutional chilling effects. This decision therefore clarifies statutory meaning while potentially sharpening the federal constitutional question.
• Legislative response pressure: If federal courts find constitutional infirmity tied to strict-liability-like damages, the Legislature may face pressure to add an explicit mental state, safe harbor, impossibility defense, or other limiting language—an outcome the Court implicitly recognized as a legislative, not judicial, task.

4. Complex Concepts Simplified

Mens rea

“Mens rea” means the defendant’s state of mind (e.g., knowingly, negligently, recklessly, purposefully). The Court held that for Daniel’s Law actual damages, plaintiffs need not prove any particular state of mind.

Strict liability vs. mens rea-free statutory liability

“Strict liability” often means liability without fault. The Court did not label N.J.S.A. 56:8-166.1(c)(1) “strict liability” as a constitutional matter; instead it held, as a matter of statutory meaning, that no mental state is an element for actual damages.

Expressio unius / intentional omission

If the Legislature includes a requirement in one subsection but not another, courts infer the omission was deliberate. Here: (c)(2) has “willful or reckless disregard,” (c)(1) does not.

Constitutional avoidance

Courts sometimes choose a reasonable interpretation that avoids constitutional problems. But they cannot “rewrite” statutes. The Court also emphasized it was not deciding constitutionality in this certified-question posture.

Liquidated damages and “shall award”

Daniel’s Law requires the court to award “actual damages, but not less than” $1,000 per violation. “Liquidated damages” are a legislatively set minimum amount, used when measuring actual harm may be difficult or when the Legislature intends a strong deterrent.

5. Conclusion

Atlas Data Privacy Corp. v. We Inform, LLC resolves a pivotal interpretive question: Daniel’s Law imposes actual-damages liability under N.J.S.A. 56:8-166.1(c)(1) without any mens rea element. The Court reached that conclusion through a tightly textual analysis reinforced by statutory structure (mens rea in (c)(2) but not (c)(1)), internal comparison to other Daniel’s Law provisions that do require mental states, and amendment history (the Legislature’s removal of “reasonable person” language).

The Court also delivered an institutional message: where the Legislature has demonstrably chosen when to specify mental states, judicial insertion of a missing mens rea risks the kind of “judicial transplant” condemned in State v. Pomianek. Whether the statute—as so construed—survives constitutional scrutiny is expressly left to the Third Circuit, setting the stage for a consequential next phase in Daniel’s Law litigation.