A young woman in Coalinga, California, following a visit home from college, penned to her MySpace page “An ode to Coalinga” (the “Ode”). The Ode opens with “the older I get, the more I realize how much I despise Coalinga” and then proceeds to make a number of extremely negative comments about Coalinga and its residents. She removed the Ode from her MySpace page within six days of posting it.
However, during the six days that the Ode was posted on MySpace, the principal of Coalinga high school discovered the Ode and sent it to his friend, the editor of the local paper, the Coalinga Record.
The editor of the Coalinga Record republished the Ode as a “Letter to the Editor,” adding the author’s last name (which was not present on the MySpace page). The author and her family received death threats, and a shot was fired at the family home, forcing the family to move out of Coalinga. Due to severe losses, her father closed the 20-year-old family business.
The California Court of Appeal, in Moreno et al. v. Hanford Sentinel, Inc., et al., F054138, slip op. (Cal. Ct. App. April 2, 2009) (PDF link) ruled that the principal did not invade the author’s privacy when he handed it over to the Coalinga Record. The court further held that the editor of the Coalinga Record did not violate the author’s rights when it published her full name.
When posting material to MySpace, a user’s expectation of privacy is diminished if not obviated, depending on the circumstances. Although the court’s opinion does not make it clear, it appears that the author’s Ode was available to any person viewing her MySpace page (versus her granting access to only a small group of people). The court was not moved by the argument that only a limited audience would have viewed her posting. “Here, Cynthia publicized her opinions about Coalinga by posting the Ode on myspace.com, a hugely popular internet site. Cynthia’s affirmative act made her article available to any person with a computer and thus opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.”
Removing the Ode only six days of publication also did not help to regain some sort of privacy. “That Cynthia removed the Ode from her online journal after six days is also of no consequence. The publication was not so obscure or transient that it was not accessed by others.”
The court also found that although the author’s last name was not published on her MySpace page, her identity was easily ascertainable. The court wrote:
Campbell was able to attribute the article to her from the internet source. There is no allegation that Campbell obtained Cynthia’s identification from a private source. In fact, Cynthia’s MySpace page included her picture. Thus, Cynthia’s identity as the author of the Ode was public. In disclosing Cynthia’s last name, Campbell was merely giving further publicity to already public information. Such disclosure does not provide a basis for the tort.
The case was remanded in order to address the claim of intentional inflection of emotional distress, but the ruling on privacy is intact.
This case is a wonderful example of Web 2.0 users losing the right to keep their thoughts private once they publish their thoughts online. What is unclear, and the “gray area” that will continue to develop, is whether publication to a select group, or publication with privacy setting activated that prevent the general public from viewing the content, constitutes a waiver of privacy with respect to that material.
Regardless of any gray area, the lesson is clear. Publication, possibly even to a limited group, raises the risk that the author waives all right to privacy in that work.
Mark McCreary is a partner in Fox Rothschild’s Corporate Department, specializing in privacy and Internet law. If you have questions regarding this post, or any other privacy matter, you may contact Mark at (215) 299-2010 or email@example.com.