California Court Rules That MySpace Postings Aren't Private

A California appellate court ruled last week that a young woman could not recover for invasion of privacy based on re-publication of material she posted on her MySpace page.

The case involves Cynthia Moreno, a UC Berkeley student who grew up in Coalinga, CA.  Like many college students who get a taste of the big city and exposed to lots of new ideas, Cynthia developed a bit of hostility towards her hometown.  After a visit in 2006, she posted some "extremely negative comments" about Coalinga and its inhabitants on her MySpace page, in a posting entitled "An ode to Coalinga."  Apparently she had second thoughts about airing her gripes online because she removed the posting six days later.  

Alas it was too late for Cynthia.  Roger Campbell, the principal of the local high school, discovered the "ode" and gave a copy to a friend who worked for the Coalinga Record, a local newspaper.  The newspaper published the "ode" in its Letters to the Editor section, attributing it to Cynthia and giving her full name.  To put it bluntly, the good citizens of Coalinga freaked out.  Unfortunately, Cynthia's family still lived in town, and the townspeople took their outrage out on them. The situation got so bad that the family moved away and Moreno's father had to abandon his 20-year-old family business.  

Cynthia and her family filed suit against the principal and the publishers of the newspaper, seeking to recover for invasion of privacy through publication of private facts and intentional infliction of emotional distress.  The trial court granted the newspaper's motion to strike the complaint under the California anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16), as well as the principal's demurrer (basically, an ordinary motion to dismiss) on both counts.  The Morenos originally appealed both rulings, but later abandoned their appeal against the newspaper, leaving only the principal.

Not surprisingly, the Court of the Appeal, Fifth Appellate District, held that the Morenos could not recover for invasion of privacy because the facts published were not private: 

Here, Cynthia publicized her opinions about Coalinga by posting the Ode on, a hugely popular internet site.  Cynthia's affirmative act made her article available to any person with a computer and thus opened it to the public eye.  Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.

The court also found that publishing Cynthia's full name along with the article was not actionable, even though she had not included her last name on her MySpace page.  Because that page included her photograph, the court determined that Cynthia's identity as the author of the "ode" was public. 

Although the court did not touch on the point directly, it sounds like Cynthia did not use MySpace's privacy settings to restrict her profile to "friends only."  If she had, her argument that she only intended for a limited group of friends to view the posting might have had more traction.  The court recognized that "[T]he claim of a right of privacy is 'not so much one of total secrecy as it is of the right to define one's circle of intimacy,'" but the facts (at least as understood by the court) provided no basis for concluding that Cynthia had attempted to delimit that circle.  The harder and more interesting question of whether postings on friend-restricted pages are "private" therefore awaits resolution another day.  

In denying Moreno's request for permission to amend the complaint, the court also determined that her publication on MySpace precluded any claim for misappropriation of her name or likeness.  The court noted that misappropriation, as a species of invasion of privacy, also requires the plaintiff to have a reasonable expectation of privacy.  The court did, however, reinstate the Morenos' emotional distress claim, ruling that a jury could reasonably find that the principal's conduct in turning over a copy of the "ode" to the newspaper was "extreme and outrageous."

For more coverage of the decision, see Eric Goldman,, the Wall Street Journal Law Blog, and the Central Valley Business Times.


Subject Area: