Monday, April 6, 2009
C.A. Rejects Privacy Claim Based on Republication of Web Posting
By KENNETH OFGANG, Staff Writer
Comments posted on a publicly accessible website are not private, and the poster cannot sue for invasion of privacy when the comments are republished in a newspaper, the Fifth District Court of Appeal has ruled.
The court Thursday affirmed a Fresno Superior Court judgment insofar as it rejected the privacy claim of a UC Berkeley student, whose online journal informed myspace.com users that she “despise[d]” her hometown of Coalinga.
The justices, however, reinstated her claim, along with those of family members who still lived in the town at the time, that the school principal who sent a copy of her comments to the Coalinga Record intentionally inflicted emotional distress.
Cynthia Moreno, wrote “An ode to Coalinga” and posted it on the site. The 700-word entry opened with “the older I get, the more I realize how much I despise Coalinga” and proceeded to make additional negative comments about the town.
Moreno took the posting down after six days. But the day after she did so, the principal of Coalinga High School, Roger Campbell, reported the contents to his friend, the editor of the Record.
The community’s reaction, according to the complaint, was extremely negative. The family allegedly had to leave Coalinga after a shot was fired at the family home, and Moreno’s father had to close the family business after 20 years because the community did not want to deal with him anymore.
Moreno, her parents, and her sister—still a Coalinga High School student at the time—sued the owners of the newspaper, Campbell, and the school district. The newspaper owners, however, prevailed on an anti-SLAPP motion and settled with the plaintiffs while the judgment was on appeal.
Fresno Superior Court Judge Adolfo M. Carona sustained demurrers on behalf of Campbell and the district. He reasoned that Moreno’s views on Coalinga were not private once she posted them on myspace.com, and that causing those comments to be republished did not constitute intentional infliction of emotional distress because it was not outrageous conduct as a matter of law.
Justice Herbert Levy, writing for the Court of Appeal, said the trial judge was correct with respect to the privacy claim, but that outrageousness was a question of fact under the circumstances.
“A matter that is already public or that has previously become part of the public domain is not private,” Levy wrote.
A matter need not be secret to be private, so voluntary disclosure to a small group of people will not preclude a privacy claim, Levy acknowledged. But posting to the Internet is different, he said.
“By posting the article on myspace.com, Cynthia opened the article to the public at large,” he wrote. “Her potential audience was vast.”
That she removed the posting before it was republished is irrelevant to the privacy issue, the justice said.
Family Members’ Claims
As for the other members of the family, he wrote, their claims fail for the same reasons as Moreno’s. And even if Moreno had a valid claim, the family members would not, because no facts about them were published, and any animus directed at them was a result of Moreno’s comments, rather than anything they themselves said.
In an unpublished portion of his opinion, however, Levy concluded that, “reasonable people may differ on whether Campbell’s actions were extreme and outrageous.” He cited the allegations that Campbell’s purpose in giving the Ode to the newspaper editor was to punish the family, and that his conduct was particularly opprobrious given that Moreno’s sister was still a student at his school.
The case is Moreno v. Hanford Sentinel, Inc., 09 S.O.S. 1963.
Copyright 2009, Metropolitan News Company