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Privacy Law Blog

No Privacy Cause of Action for Od(e)ious Myspace.com Posting

Posted in Online Privacy

According to a new, partially-published California Court of Appeal decision, there is no cause of action for invasion of privacy under the California Constitution where a plaintiff’s myspace.com posting is republished in a newspaper.   In Moreno et al. v. Hanford Sentinel, Inc., et al., F054138, slip op. (Cal. Ct. App. April 2, 2009), plaintiff Cynthia Moreno published on her myspace.com page “An ode to Coalinga,” in which she excoriated her hometown. She removed the Ode six days after she published it.

Before Ms. Moreno removed the Ode, the principal of Coalinga High passed the Ode on to the Editor of the Coalinga Record, which published the Ode, with Ms. Moreno’s first and last names, as a letter to the editor. The community reacted strongly (sometimes violently) and the Moreno family was forced to move from Coalinga. The Moreno family alleged that it suffered significant damages as a result.

The court held that Ms. Moreno’s publication of the Ode on myspace.com meant that the Ode was not private, and that Ms. Moreno’s expectation of a more limited myspace.com audience was of no consequence.  Further, the fact that she removed the Ode prior to publication in the Coalinga Record did not render the Ode private; “[t]he publication was not so obscure or transient that it was not accessed by others.”  Slip op. at 6.  Finally, the Court held that the Moreno family did not have standing to sue based on alleged invasion of Ms. Moreno’s privacy; “the right of privacy is purely personal.” Id.

It is not clear from the Court’s opinion whether Ms. Moreno had protected her myspace.com page with some kind of privacy settings.  The outcome might have been different had Ms. Moreno explicitly alleged that she did so.  Because the court ruled at the demurrer stage, there was no evidence regarding that issue.