Monday, April 06, 2009

Perils of Social Media: Think Before You Post

Tip of the hat to my colleague, Prof. Andy Beckerman-Rodau:

MySpace Musings Aren't Private, Appeals Court Rules
Mike McKee

Hate rained down on Cynthia Moreno's family after her hometown newspaper in Coalinga, Calif., published her online rant about how much she despised the small Central Valley city in which she had grown up. So much so that her family claims it had to move away.

Moreno sued for invasion of privacy, but late Thursday a Fresno, Calif.-based appellate court said she had no grounds even if she meant her thoughts for a limited audience on her MySpace page.

"The facts contained in the article were not private," 5th District Court of Appeal Justice Bert Levy wrote. "Rather, once posted on, this article was available to anyone with Internet access."

Free-speech lawyer Karl Olson, who represents The Recorder but was not involved in this case, called the ruling a "cautionary tale" for Internet socializers. "Some people," he said, "probably may need a Miranda warning before they go on the Internet -- that anything they post can and will be used against them."

Moreno, a University of California at Berkeley student at the time, posted her "Ode to Coalinga" on her MySpace page fresh after visiting the town of 19,000 residents off Interstate 5 midway between Sacramento and Los Angeles. She began by saying "the older I get, the more I realize how much I despise Coalinga," and then made several negative comments about the town and its inhabitants.

The entry was posted only six days, but that was long enough for Roger Campbell, principal of Coalinga High School, to find the ode and forward it to Pamela Pond, editor of the Coalinga Record. The ode was published in the newspaper's letters section.

Local reaction was swift, according to the suit. Moreno's parents, David and Maria, and younger sister, Araceli, who lived in Coalinga, say they got death threats and a gun shot was fired at their home. David Moreno's 20-year-old business -- which wasn't identified in the ruling -- lost so much money that it was closed, the suit claimed, and the family moved out of town.

Moreno and her family responded by suing Campbell, the Coalinga Record, its publishers -- Lee Enterprises Inc., Lee Enterprises Newspapers Inc. and Hanford Sentinel Inc. -- and the Coalinga-Huron Unified School District. They alleged invasion of privacy and intentional infliction of emotional distress.

The publishers were dismissed from the suit, and eventually Fresno County Superior Court Judge Adolfo Corona sustained demurrers dismissing the complaints against the remaining defendants. The 5th District on Thursday affirmed the ruling on invasion of privacy.

"Cynthia's affirmative act made her article available to any person with a computer and, thus, opened it to the public eye," Justice Levy wrote. "Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material." He noted that Moreno's "potential audience was vast."

The court also said it wasn't relevant that Moreno only used her first name on her online journal, because her identity was "readily ascertainable" from her MySpace page.

"There is no allegation that Campbell obtained Cynthia's identification from a private source," Levy wrote. "In fact, Cynthia's MySpace page included her picture."

Presiding Justice James Ardaiz and Justice Gene Gomes concurred.

The justices gave the Moreno family a partial break by ruling that their emotional distress complaints should go before jurors. Moreno and her family contend that Campbell didn't have permission to submit the online journal to the Coalinga Record, had hoped to punish them for Moreno's comments, and that as the younger daughter's principal, his conduct was "extreme and outrageous."

"Based on these allegations," Levy wrote, "we conclude that reasonable people may differ on whether Campbell's actions were extreme and outrageous. Accordingly, it is for a jury to make this determination."

Neither Berkeley lawyer Paul Kleven, who represented the Moreno family, nor Paul Auchard, a partner with Fresno's Auchard & Stewart, who represented the school district and principal, returned calls seeking comment.

Olson called the case a "2009 Internet version" of Sipple v. Chronicle Publishing Co., 154 Cal.App.3d 1040, a 1984 ruling in which San Francisco's 1st District ruled that a gay man who was outed by a column by Herb Caen after he stopped an assassination attempt on then-President Gerald Ford couldn't sue for invasion of privacy.

"Certain people didn't know he was gay, but he had come out of the closet [to others]," Olson said. "So I think when you post something on the Internet -- even if you're not really thinking very carefully about what you post -- you don't really have a privacy claim."

The ruling is Moreno v. Hanford Sentinel Inc., 09 C.D.O.S. 4208.

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