Privacy Claim Based on Republication of Web Posting Is Rejected

Apr 6, 2009 4:15 PM PST
FRESNO, Calif. — Comments posted on a publicly accessible website are not private and the poster cannot sue for invasion of privacy when the comments are republished, according to a California appellate court.

California’s 5th District Court of Appeal last week affirmed a Fresno Superior Court judgment, which rejected a claim from a UC Berkeley student, whose MySpace.com page included a phrase that she “despise[d]” her hometown of Coalinga.

The case is of significant interest to the adult entertainment industry, which heavily uses message boards and social-networking sites to market their products, personas and other activities.

It emphasizes the obvious in the court of law: Anything one posts can and will be used against them.

Cynthia Moreno posted her 700-word “Ode to Coalinga” on her MySpace page after visiting the town of 19,000 residents 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 was long enough for Roger Campbell, principal of Coalinga High School, to find the story and forward it to the editor of the Coalinga Record. Her ode was published in the newspaper’s letters section.

Local reaction was harsh, according to the suit, and included death threats and a gunshot fired at her family’s home.

Her father’s 20-year-old business — which wasn’t identified in the complaint — lost so much money that it was closed, the suit claimed, and the family moved out of town.

Moreno and her family sued Campbell, the Coalinga Record and the Coalinga-Huron Unified School District, alleging invasion of privacy and intentional infliction of emotional distress.

The publisher was dismissed from the suit, and eventually Fresno Superior Court Judge Adolfo Corona sustained demurrers dismissing the complaints against the remaining defendants.

In Thursday’s decision, 5th District Court of Appeal Justice Bert Levy wrote that “once posted on MySpace.com, this article was available to anyone with Internet access.”

“The facts contained in the article were not private,” ruled Levy, who noted that Moreno’s “potential audience was vast.”

“Cynthia’s affirmative act made her article available to any person with a computer and, thus, opened it to the public eye,” Levy wrote. “Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.”

Levy said that her comments to be republished did not constitute intentional infliction of emotional distress because it was not outrageous conduct as a matter of law.

Colin Hardacre, of Los Angeles-based Kaufman Law Group, said he has some advice for adult business professionals who chat it up on message boards like GFY.com, XXXPornTalk.com and others.

“This just reinforces what we tell all our adult clients — stay off the boards!” Hardacre told XBIZ.

This is especially true if you are involved in litigation, Kaufman Law's Gary Kaufman said. “Anything you post online is public as soon as you press submit — when it’s online it’s a posting; at trial, it’s called evidence,” Kaufman told XBIZ.

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