Understanding the MySpace Privacy Case

Issue

Berkeley student, Cynthia Moreno published an entry to her MySpace page entitled “An Ode to Coalinga” (the “Ode”). She opened the Ode with “the older I get, the more I realize how much I despise Coalinga,” and then proceeded to detail a barrage of negative commentary about the city and its residents. Six days later, she removed the Ode, however, before she had deleted it, the principal of her former high school had already been to her page, copied her Ode and fired it off via email to his female friend who happened to be the editor at the local newspaper. Cynthia hadn’t used her surname on her page, however the principal, Roger Campbell, had thoughtfully included it for his friend in the newsroom.

The editor then published the Ode as a “Letter to the Editor,” attaching Cynthia’s full name. Long story short, the community of Coalinga experienced a rather violent reaction to the Ode. The Moreno family received death threats, shots were fired upon their home, and ultimately, Mr. Moreno was forced to close the family business. Such a concerted effort put forth by the city’s inhabitants in an attempt to exact retribution upon the family makes it clear to me that the Ode probably wasn’t very far off the mark in portraying the community in a negative light.

Proud Coalinga residents viciously maligned as violent

Ms. Moreno filed a complaint against Mr. Campbell, the newspaper, and the publisher for invasion of privacy and intentional infliction of emotional distress, however, the publisher managed to convince the Superior Court to dismiss the complaint based on an anti-SLAPP defense pursuant to Code of Civil Procedure § 425.16. Ms. Moreno did not follow up on an appeal from the judgment. However, the case against Mr. Campbell and the Hanford Sentinel proceeded.

Law

Section 1708.7 of the California Civil Code makes a person liable for the civil crime of stalking. Also referred to as a tort.

Section 646.9 of the Penal Code makes stalking a criminal offense.

And Section 422 of the same Penal Code makes stalking via electronic communications device, also known as “cyberstalking” a criminal offense.

Perhaps such behavior as exhibited by Mr. Campbell is more consistent with invasion of privacy, instead. After all, merely checking up on the details that someone else voluntarily uploaded to a popular Internet website is hardly criminal or criminal-like behavior. But is it really considered stalking or an invasion of privacy if a person willingly discloses on the Internet the particulars of his or her personal life and thoughts?

All of the above referenced statutes go to great lengths to codify exactly what constitutes the official offense of stalking as defined by the State Legislature, but anyone who has ever followed anyone else on a social networking website such as MySpace is guilty of committing a kind of stalking and privacy invasion on a regular basis. A very benign flavor, but stalking or invasion of privacy, nonetheless. What else would you call the act of “following” someone’s activities on the web?

The California Court of Appeal in the Moreno MySpace case didn’t buy that line of argument either. But that doesn’t make the verdict justifiable, in my opinion. If Justice is indeed blind, then she is also deaf and mute as well.

The bottom line of this particular case does not jibe with any facet of the stalking or invasion of privacy laws as they are currently written, which is just as well because like morality, ethics also cannot be legislated. However, I will let you decide for yourself as to whether the instant case was a voluntary disclosure or simply a matter of an authority figure who not only abused his discretion, but who also, evidently, spends his time lurking on social networking websites in search of students.

Richard Vernon, Principal, The Breakfast Club

Analysis

The Appeals Court concluded that Ms. Moreno did not establish a cause of action for her invasion of privacy claim. Such a violation would have required her to set forth:

1. A legally protected privacy interest;
2. A reasonable expectation of privacy;
3. A serious invasion of the privacy interest.

Four distinct kinds of activities have been found to violate this privacy protection and give rise to tort liablity. These activities as defined by statute are:

1. Intrusion into private matters;
2. Public disclosure of private facts;
3. Publicity placing a person in a false light;
4. Misappropriation of a person’s name or likeness.

The court found that since Ms. Moreno had published her journal on MySpace, the Ode was therefore, not private. A critical component of an invasion of privacy charge is public disclosure of private facts. A matter that is already public is not private.

As to the intentional infliction of emotional distress, there are four elements that must be determined by a jury to determine whether conduct was sufficiently extreme and outrageous to result in liability:

1. Outrageous conduct;
2. Intention to cause or reckless disregard of the probability of causing emotional distress;
3. Severe emotional suffering;
4. Actual and proximate causation of the emotional distress.

The court determined that in order for conduct to be reasonably regarded as extreme and outrageous, an objective standard must be applied. The standard is how reasonable people might view the conduct, and, those who are either overly sensitive or callous are disincluded.

The Superior Court concluded that Mr. Campbell’s conduct did not meet the standard of outrageousness necessary to constitute intentional infliction of emotional distress despite the fact that he submitted the Ode to the newspaper for publication knowing he did not have permission to do so. Ms. Moreno alleged that he did so to punish her for the contents of the Ode and to cause emotional distress and alleged conspiracy to include the newspaper as well as the publisher.

The Appeals Court decided that whether Campbell’s conduct was extreme and outrageous was for a jury’s determination. And since Ms. Moreno had filed an appeal from the judgment against her resulting from the anti-SLAPP statute, and then later abandoned it, she could not then amend her complaint to include that Mr. Campbell had conspired with the newspaper and the publisher to cause her emotional distress.

Conclusion

Essentially, the Appeals Court relied on the language of the invasion of privacy law and ultimately concluded that since Ms. Moreno published her Ode on the Internet, she could not then have a reasonable expectation to privacy.

Ed Rooney, Principal Ferris Bueller's Day Off

That this verdict was analyzed appropriately and a logical conclusion deduced, there is no argument. However, I would submit to the reader that given his position as high school principal, the ethics of Roger Campbell should be called into question, and, his employment status terminated based on his questionable behavior.

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