Is It a Violation of Privacy Law to Reproduce a MySpace Posting in a Context Where the Very People It Targets Will See It?

4-28-2009 National:

Is It a Violation of Privacy Law to Reproduce a MySpace Posting in a Context Where the Very People It Targets Will See It? A California Court Says No, But Allows An Intentional Infliction of Emotional Distress Claim to Stand

Earlier this month, a California appellate court issued an interesting ruling in a case in which a plaintiff's online writing was republished -- without her permission, and with her surname added – in a context where it predictably was seen by a different and very hostile audience.

The events at issue began when Cynthia Moreno, while away at college at U.C., Berkeley, posted a poem she had written entitled "An ode to Coalinga" – her hometown – on her MySpace page. While the poem's title might suggest that it praised the town, in fact it excoriated it; Moreno expressed "how much I despise Coalinga."

Six days after posting the ode, Moreno de-posted it, for reasons the court's opinion does not explain. But in the interim, Moreno alleges, Roger Campbell, the principal of Coalinga High School, submitted the ode to the local paper, the Coalinga Record. There, the editor, Campbell's friend Pamela Pond, published the ode in the "Letters to the Editor" section and signed Moreno's full name to it -- without ever contacting Moreno to procure her permission to do so.

The community's response to the "Letter" was not just hostile, but actually violent, according to Moreno's allegations: Moreno's family, who still lived in Coalinga, received death threats, and a shot was fired at their house. Fearful, the family left town.

Meanwhile, Moreno's father had to close down the business he had run in Coalinga for twenty years after suffering severe losses. Granted, boycotts to protest objectionable speech are fair game – but it was not Moreno who had published the ode in the Coalinga Record and ensured the whole town would see it; and the business was not Moreno's, but her father's. Moreover, one would hope that mature adults would understand that a young college student might be immature, and might forgive her for one rude poem – especially a poem that she had not meant for them to read.

Overall, I believe that many readers would judge what was allegedly done to Moreno and her family by supposed community leader Campbell (and by Pond) to be highly unethical – as I do. But was it also illegal?

The Privacy Claim

The court began its opinion by discussing Moreno's claim for violation of privacy – and, specifically, for the public disclosure of private facts. The court quickly – and correctly – concluded that the ode itself was not private; it reasoned that Moreno could have no expectation of privacy since literally anyone with Internet access could read the ode.

But what about the fact of Moreno's surname – which Campbell inferred, and Pond added to the "Letter" without Moreno's permission? Could the surname be the private fact that was publicly revealed? In my view, the court's analysis of this argument was too cursory – though perhaps still on balance correct.

This was an important argument because there is a First Amendment right to speak anonymously. (I discussed this right in a prior column.) That right made this a case that pitted free speech (Campbell's and Pond's right to speak and publish) against free speech (Moreno's right to speak anonymously). Although no government censor was involved here, the way a state defines its common-law privacy torts can have serious ramifications for free speech, just as its rules for defamation claims can.

But was Cynthia's surname really a private fact? Granted, the court pointed out that Cynthia's picture was on the site, so that anyone who knew her could recognize it. Still, it was Campbell and Pond – not Cynthia Moreno -- who actually disclosed the surname to the Coalinga Record's readers, and it was the disclosure of the surname in the paper that caused the damages in the case.

Moreover, the omission of Cynthia's surname from her MySpace page indicates that even if the MySpace page was technically available to all and sundry, her expected readers were likely those who knew her on a first-name basis. That is important because the court itself cited a precedent noting that the right of privacy is the right "to define one's circle of intimacy – to choose who shall see beneath the quotidian mask."

This idea – the idea that there are levels of privacy – suggests that perhaps transforming an online semi-anonymous disclosure into a local, signed disclosure could be a privacy violation after all. Yet there is also a strong case for drawing a bright line – as the court did here – and suggesting that speech is not really anonymous, and a surname is not really a private fact, if the speaker can be identified by many due to her attached photo. (Online personals users: Beware!)

The Intentional Infliction of Emotional Distress Claim

Although that ruling may have been the end of the privacy claim, it was not the end of this case. The court separately let the intentional infliction of emotional distress (IIED) claim stand, expressing its sense that "a jury should determine whether the alleged conduct was outrageous," because reasonable minds could differ as to whether the allegations regarding Campbell's actions, if proven, would meet that standard.

That's a pretty strong ruling since the court was well aware of – and quoted – the exceptionally high standard an IIED claim must meet: The conduct alleged must "exceed all bounds of that usually tolerated in a civilized community." And here, the court is not talking about the violence that ensued; it is only discussing what Campbell (with Pond's assistance) did to Moreno. The ruling is also notable because courts are well aware that the IIED standard is written to be extremely demanding, and only to apply in cases at the thin, bad end of the Bell Curve of behavior. Clearly, this court thought this case might quality.

One factor that the court specifically mentioned was the allegation that Campbell was still Moreno's younger sister's high-school principal – and thus, one would think, supposedly her role model and protector – at the very time he was launching this attack on her older sibling. After all, a principal can be said to serve in loco parentis while a high school student is in school. Did Campbell's attack on Cynthia mean he betrayed his quasi-parental role toward her sister?

Could a Copyright Claim Have Succeeded Here?

Finally, this case might seem to readers to be missing a crucial claim: It might seem to be an open-and-shut copyright case. The court specifically noted in a footnote that no copyright claim was brought, and that it thus expressed no opinion on the copyright issue. If one had been brought, would it have succeeded? And was such a claim worth adding to the complaint?

The problem with adding a copyright claim here would be the modest damages that would likely be awarded. None of the most serious damages that the Morenos suffered could be awarded under a copyright theory. The copyright claim would look mainly to the value of Cynthia Moreno's work – for which there likely would have been no market, and which Cynthia was giving any Internet user the right to read for free, at least during the six days the posting was up.

Sending a copyright claim to the jury, along with the other claims, could also have been a strategic disaster for the plaintiff, for a jury might have found consensus on the low-dollar copyright claim, and stopped there. Now, instead, a jury will have to decide the real question here: If Moreno can prove Campbell did what she alleges, were his actions beyond what civilized people typically tolerate?

This case isn't really about copying words; it is about exposing a family to the wrath of its community. Defining the claims to reflect the core of the case was therefore a wise move. ..Source.. by Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden, a FindLaw columnist, is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.