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.
April 28, 2009
Is It a Violation of Privacy Law to Reproduce a MySpace Posting in a Context Where the Very People It Targets Will See It?
September 10, 2008
MI- Laws, local policies limit library patron record disclosure
9-10-2008 Michigan:
At a time when privacy is at a premium, the need for law enforcement agencies to preserve public safety and homeland security is likewise reaching an apex. That's made local libraries an interesting focus in the confrontation between public safety and individual privacy.
In Michigan, local libraries must comply with statutory requirements when it comes to handling investigators' requests for patron records. Under the Michigan Library Privacy Act, library patron records may not be disclosed to third parties unless mandated to do so by written court order or subpoena.
As sated in that act, "'Library record' means a document, record, or other method of storing information retained by a library that contains information that personally identifies a library patron, including the patron's name, address, or telephone number, or that identifies a person as having requested or obtained specific materials from a library. Library record does not include non-identifying material that may be retained for the purpose of studying or evaluating the circulation of library materials in general."
The Library of Michigan, a state-sponsored agency, guides local libraries on how to comply with record disclosure laws. However, there are certain situations that have to deviate from the state law's provisions — particularly when provisions of the federal Patriot Act are invoked.
"The Michigan Library Privacy Act controls all situations unless federal law enforcement officials come into a library possessing a national security letter or an order requesting patron information," said Lance Werner, a library law specialist with the Library of Michigan. "In those situations, the Patriot Act controls those situations and those situations are solely pertaining to terrorism investigations. Other than that, no information can be disclosed regarding people's circulation records or contact information without their consent or without a court order. Even if there is a court order, the library still gets an opportunity to be heard in court before information is released."
Some lakes area libraries have adopted site-specific policies on patron record disclosure to ensure privacy and confidentiality.
The following is a breakdown of how lakes area address patron privacy issues related to law enforcement and homeland security needs. ..For Remainder of Article.. by Andrew Sawmiller
August 20, 2008
OR- Judge tells peeping Tom that privacy is sacred
Now,how to get this judge to tell lawmakers (highlighted) what he told this peeping tom?
8-20-2008 Oregon:
The 31-year-old convicted peeping Tom didn't want to agree to random searches of his computer or his cell-phone camera.
Nor did he want to abide by a curfew, or submit to random polygraph tests.
"He's not a sex offender," argued his court-appointed attorney, Kami White, noting that Oregon law doesn't recognize peeping as that kind of offense.
But Multnomah County Judge Eric Bloch told Jeremy Peter Goulet that he had violated a cherished societal boundary: the ability to retreat behind closed doors and feel safe.
"Personal privacy is one of the most important and sacred things we as individuals have," Bloch said. "This is an act that is highly inappropriate. It is life altering to the victim. It's wrong. ...And it's got to stop."
Goulet was convicted three months ago of peeping at a 22-year-old Northwest Portland woman as she showered -something the prosecutor says he has done hundreds of times without getting caught. Goulet was convicted of peeping in California eight years ago.
The judge sentenced Goulet to all the above conditions and more, including sex-offender treatment and three years of probation.
Goulet, himself, admitted during a trial in May that he liked to videotape unsuspecting women in various states of undress. Police found at least one video on his cell phone which showed a woman dressed in night clothes.
During the four-day trial, Goulet admitted to watching 22-year-old Amy Luangrath shower in her condo in the 2600 block of Northwest Raleigh Street last October. He denied allegations that he took a screen off the open window and put a stick in the blinds to peer in.
The woman's boyfriend, Danny Thomas, caught a glimpse of Goulet before he vanished. Thomas testified that when he saw Goulet in the condo's courtyard again, he chased him down, put him in a headlock and told him never to return.
When the boyfriend spotted Goulet walking in front of the building a third time a few weeks later, the two began to wrestle. Goulet testified he was simply walking home when the boyfriend jumped him. But Thomas said he was fighting for his life as Goulet tried to pull out a gun and shoot him.
Goulet said he carried the gun for protection, because he was afraid of Thomas, but that he wasn't trying to shoot him. He was trying to keep the gun from being wrested away and used against him.
Prosecutors charged Goulet with attempted murder and a few other felonies, but jurors found Goulet guilty of two misdemeanors: illegally carrying the gun and invasion of personal privacy.
At Wednesday's sentencing hearing, Goulet's attorney said her client had already suffered quite a bit. White said Goulet had lost his job and the home he rented. White also said she's fairly sure the victim's boyfriend posted Goulet's photo and information about him on Craigslist more than a dozen times.
"So his picture has been out there for everyone to see," White said.
Goulet told the judge he's struggling financially.
"There's absolutely no way I'm able to pay for counseling on my own," Goulet said.
The judge said Goulet has to make treatment his top priority.
"How could those dollars be better spent than on your health and well-being?" Bloch said. ..News Source.. by Aimee Green, The Oregonian
June 14, 2008
FL- Barred testimony throws curve into mall sex sting cases
Whether or not you agree with the decision is of no matter, this is good lawyering. Read the judge's decision.
6-14-2008 Florida:
DAYTONA BEACH -- Much of the testimony of a Beach Patrol officer will not be allowed in the case of a man accused of masturbating in a closed bathroom stall in the Sears store at the Volusia Mall -- because he didn't have a legal right to peer inside -- a judge ruled Thursday.
It remains to be seen what, if any, impact the decision might have on similar local cases of lewd acts in men's rooms, including the pending misdemeanor charges against ex-city commissioner Mike Shallow and former Seabreeze High School teacher David Behringer.
County Judge Belle Schumann found observations made by Volusia County Beach Patrol Capt. Rich Gardner should be suppressed in the case against Kenneth Halpin because the law established by a 5th District Court of Appeal ruling in 1994 says a closed bathroom stall is a private place.
In what could affect other cases, Schumann asked the appeals court to clarify the law on the issue of privacy in restroom stalls when police suspect criminal activity.
"If they accept, we will get an opinion which will be controlling those types of cases in the future," State Attorney John Tanner said. "I think the judge in effect took a more direct route to a higher court. We're pleased she did that . . . It's in everyone's best interest to clarify the law."
In the order -- which relied on a 1994 Holly Hill case -- the judge found Gardner did not have a legal reason to peer into Halpin's stall during the Nov. 1 mall sting. The ruling touches on similar arguments made by lawyers in the two higher profile cases of Shallow, 58, and Behringer, 29, and could be "persuasive" to other county judges, lawyers say.
With the suppression granted, the state's case against Halpin is weakened substantially. "We are taking a look and re-evaluating the case," State Attorney's Office spokeswoman Linda Pruitt said.
The judge's decision comes as Shallow and Behringer await a ruling from County Judge Peter McGlashan, who in April heard arguments over whether or not he should dismiss separate charges of indecent exposure and lewd acts against them.
With a decision in those cases expected today, some legal observers say a contrary ruling could create confusion over what the law is, although others say county judges make differing rulings all the time.
"The judges can have different rulings," said Tanner. "That's why you have an appeals court." If Judge McGlashan denies their pending motions, Shallow and Behringer are scheduled for trial next week.
Halpin, Behringer, Shallow and six other men were charged in the sting Nov. 1. The operation was conducted, according to court records, after Daytona Beach police received complaints about homosexual activity in the upstairs Sears men's room at the Volusia Mall. Beach Patrol officers were asked to assist because of their experience in similar stings, according to testimony. But one difference became clear: While many of their earlier arrests at or near the beach involved bathrooms with no stall doors, the activities in the Sears men's room were behind closed stalls. Those doors prompted officers to illegally peek inside, defense lawyers argue.
Halpin, who turns 45 today, walked into the bathroom and entered a stall, closing the door. Gardner, who was already in the bathroom, said he observed Halpin sniffing and coughing and raising and lowering his foot, Gardner said. Based on his training, Gardner took those behaviors as a sign that Halpin was inviting him to participate in a sex act.
Gardner exited the stall he was in, stood in front of the door and looked in at Halpin, according to testimony. "Captain Gardner observed Mr. Halpin masturbating his exposed penis for approximately 10 seconds." Then the stall door was opened.
During a hearing June 2, there was some conflicting testimony over who opened the door. The judge found it was Halpin. After his arrest, Halpin told officers, "he was being stupid, and should have just tried to exchange telephone numbers with Captain Gardner," according to testimony.
The case hinges on the appeal's court's findings 14 years ago, the judge said.
"The simple act of entering a public bathroom stall and closing the door creates an area where a person is entitled to be free from unwarranted peeking and intrusion," the judge wrote. "Under the Ward decision, Captain Gardner could not intrude into that constitutional area without probable cause to believe that a crime was being committed."
The judge found that things Gardner said he heard, "coughing, breathing heavily, using one's zipper inside a bathroom stall" do not show probable cause that a crime was being committed. ..News Source.. by JAY STAPLETON, Staff writer
September 22, 2007
Privacy and Human Rights 2002
An International Survey of Privacy Laws and Developments
Executive Summary
This annual report by EPIC and Privacy International reviews the state of privacy in over fifty countries around the world. It outlines legal protections for privacy, and summarizes important issues and events relating to privacy and surveillance. A major focus of the 2002 report has been to document the effects of September 11, 2001 on privacy and civil liberties. In response to the events of that day, specific anti-terrorism measures have been introduced in Australia, Austria, Canada, Denmark, France, Germany, India, Singapore, Sweden, the United Kingdom and the United States. Another significant development was the adoption, in June 2002, of the European Union’s Electronic Communications Privacy Directive. This Directive allows European Union member states to enact laws requiring Internet Service Providers, and other telecommunications operators, to retain the traffic and location data of all people using mobile phones, text messaging, land-line telephones, faxes, e-mails, chatrooms, the Internet, or any other electronic communication devices, to communicate.
Such data retention schemes are already in place in Belgium, France, Spain and the United Kingdom and have been proposed in the Netherlands. In New Zealand a law granting significant new interception authority to law enforcement is also pending. Among all of these measures, it is possible to identify a number of trends including: increased communications surveillance and search and seizure powers; weakening of data protection regimes; increased data sharing; and increased profiling and identification. While none of the above trends are necessarily new; the novelty is the speed in which these policies gained acceptance, and in many cases, became law.
On the other hand, the report finds that efforts to pass new data protection laws or to strengthen existing laws are continuing in Eastern Europe, Asia and Latin America. In August 2001, Peru enacted a data protection law covering credit reporting agencies and, in March 2002, created a Commission to draft a more comprehensive law. In Bulgaria, a new Personal Data Protection Act came into effect in January 2002. In Estonia, the Government is currently working on an amendment bill to the Data Protection Act to bring it into full compliance with the 1995 European Union Data Protection Directive. Poland ratified the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (ETS No. 108) in May 2002. In Slovakia, an amended data protection law has been introduced and is expected to take place in September 2002. In 2001, Slovenia amended its Data Protection Act in order to establish an independent supervisory authority. A Personal Data Protection Act is pending in Malaysia. In Japan, two new anti-spam laws were adopted in 2002. In Singapore a National Internet Advisory Committee issued a Model Data Protection Code for the Private Sector in February 2002.
In addition, laws or codes to protect privacy in the workplace are gaining more prominence. In Finland, a new law on Data Protection in Working Life entered into force in October 2001. In December 2001, the President of the Russian Federation, signed into law the new Labor Code which includes protection of personal data. The United Kingdom Privacy Commissioner has drafted a fourpart code on data protection in the workplace. The first of these, relating to privacy in the recruitment and selection process was issued in March 2002. The second, on employee monitoring, was released for public comment in April 2002.
In Sweden, a national committee issued a proposal in March 2002 recommending specific legislation to protect the personal information of current employees, former employees and employment applicants in both the private and public sectors. In May 2002, the European Union Article 29 Data Protection Working Party issued a working paper on monitoring and surveillance of electronic communications in the workplace. In June 2002, the Hong Kong Data Protection Commission issued a draft a code of practice on workplace for public consultation. The new European Union Electronic Communications Directive, while leaving open the possibility of data retention in the members states, has also established important safeguards for information transmitted across the Internet. It prohibits unsolicited commercial marketing by e-mail (spam) without consent, and protects mobile phone users from precise location tracking and surveillance.
During the year new Freedom of Information Laws were passed in Peru and Mexico and went into effect in Poland. ..more.. by Electronic Privacy Information Center, Washington, DC, USA -and- Privacy International, London, United Kingdom
