by Linda Holmes, JD
April 8, 2009
Many of us underestimate how much we count on a sort of privacy that relies on others not taking the time or energy to check up on us. It is not real privacy – in theory, someone might pull public records, such as an old citation or lawsuit that would embarrass us, but who’s going to bother? Someone could use every legal method to investigate us, but why would they make our embarrassment their hobby?
Of course, the time and energy required to find information isn’t what it used to be, to say the least. It would be one thing for a person 20 years ago to care enough to search newspapers nationwide for all the clippings about you; now that same person can set up a Google Alert in 30 seconds to do the same thing.
And then, of course, there are MySpace and Facebook. Depending on how you do or do not adjust your privacy settings, the information you post on a social networking site often falls into a nebulous category. No, you probably wouldn’t want every individual who might not like it to read it, but…they probably won’t, right?
This question came up recently for a young woman named Cynthia Moreno, who mused on her MySpace page about how much she couldn’t stand the town of Coalinga, California where she grew up – and where her parents still lived – and who found her life seriously disrupted as a result. Her comments created so much anger in town that her parents received death threats and a shot was fired at their home. They even had to shut down the family business.
But, of course, the entire city of Coalinga wasn’t breathlessly following the MySpace page of a former resident who had gone off to college. In this case, the population at large became aware of Moreno’s comments because the principal of the local high school saw the posting and passed it along to the local newspaper. The local paper published Moreno’s MySpace comments in its “Letters To The Editor” section, despite the fact that the web posting was not, in fact, a letter to the editor, and even though Moreno’s MySpace page didn’t disclose her full name.
After suffering the intense reaction of the local population, the Moreno and her family sued the principal for invasion of privacy, essentially arguing that Cynthia’s MySpace comments were intended for a limited audience of people she knew and not for broad publication. Their position was that something published casually and obviously intended for friends cannot simply be taken and published broadly without your permission.
Last week, a California court ruled against Moreno and her family.
In an April 2 decision, a California appellate court sustained the trial judge’s decision that the Morenos failed to state a claim for invasion of privacy. Statements published on MySpace, the court concluded, are public – not private. To claim invasion of privacy, the Morenos needed to allege that something private was disclosed, and Cynthia’s posting did not qualify as private once it was published on MySpace.
In addition, the court found that you have no expectation of privacy in materials you publish to a social networking site simply because you identify yourself by first name only, at least as long as pictures or other information present allow a viewer to identify you.
Significantly, the court’s opinion does not address what, if any, privacy settings were on Moreno’s MySpace page. What if it were only accessible to friends she had approved, and one of those friends copied it and passed it along? What if it were protected with a password? The court does not say.
The easy lesson to take away from this is that you don’t put things on the Internet that you don’t want made public. But what parent posting family pictures on a Flickr page wouldn’t feel horribly violated if those same photos appeared on the front page of the local paper, accompanied by the family’s name and address and the schools the children attend – even if all that information is theoretically available to the public? Everyone says they are careful about what they post online, but most people also do what Cynthia Moreno did – casually assume that very few strangers are randomly stumbling across their information and republishing it in an enormously more high-profile forum.
The less obvious lesson, however, comes from the court’s other decision, which was to allow a jury to decide whether the principal is liable for intentional infliction of emotional distress. A jury might conclude, for example, that the principal, for no reason other than spite, sent the piece to the local paper knowing the Morenos would suffer and wanting them to suffer. As easy as it is to walk away from this story with little sympathy for Cynthia, it’s just as easy to have no respect for a high-school principal – of the school Cynthia Moreno’s sister still attended – who would set out to subject a college student to ridicule and vitriol, not only by showing off a silly rant the town otherwise would never have noticed, but by also supplying her last name, which was not on the original piece.
Intentional infliction of emotional distress can be a difficult cause of action to establish. It requires showing extreme and outrageous conduct and the intent to cause harm or recklessness about causing harm. If the principal merely forwarded the paper a link to the URL where Moreno’s rant could be found, can the community be expected to call that extreme and outrageous? Isn’t it perhaps just gossipy?
There is also the behavior of the newspaper to consider. The Morenos originally included the paper in the lawsuit, but those claims were dismissed. Nevertheless, there are serious questions about the ethics, and possibly the legality, of a paper publishing something in its “Letters to The Editor” section, representing it to be a voluntary submission when it is not. It isn’t clear from the description of the facts whether the paper literally printed the piece as if it had been submitted to the paper by Cynthia herself. If so, this would likely have increased the anger that resulted, since it’s one thing to be effectively overheard badmouthing your town to your friends and another to brazenly write to the local paper about it, as if you’re taunting the public with your disdain for them.
It’s also noteworthy that the only person the court’s opinion takes off the hook is the principal – and only as to invasion of privacy. The fact that MySpace rants are public does not entitle anyone to harass in response. There is no “anger people at your own risk” rule, simply because something happens on MySpace. The headline coming out of this case has to do with MySpace and privacy, but ultimately, the criminal conduct to which the Morenos appear to have been subjected remains criminal. And even the principal – the only one who even “wins” in this decision – has the outrageousness of his conduct to answer for.
Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting. She also edits the Monkey See blog at NPR.org.
Moreno v. Hanford Sentinel Inc., No. F054138, 2009 Cal. App. LEXIS 472 (Cal. App. 4th Apr. 2, 2009).
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