Privacy and the Internet

[Voronwë the Faithful]

I read an interesting case today from the California Court of Appeal regarding privacy and the internet. It specifically involved MySpace, but it could probably apply to any social network, perhaps even including a forum like this one.

The appellants were a young woman and her family. The young woman is a student at a UC campus. Her family still lives in her hometown, including her parents and her younger sister. The young woman posted a rant on her MySpace page about the hometown, entitled "Ode to [Hometown]." After a few days she thought better of it and removed it from her MySpace page. But the day after she did so, the principal of the school where she went to high school, and where her younger sister presently was going to high school, submitted it to the local paper by giving it to a friend of his who was the editor of the paper. The paper ran it as a letter to the editor, attributed to the young woman with her full first and last name. Her MySpace site only identifies her by her first name. As a result, her family was subjected to severe harassment. They received death threats and a shot was fired at the family home, forcing the family to move out of the home town. Due to severe losses, the father closed the 20-year-old family business.

The young woman and the family sued the principal, alleging that he had violated their privacy by publishing the the "Ode" in the local paper, attributed to the young woman, without their permission. They also alleged that he was liable for the tort of intentional infliction of emotional distress. The principal filed a demurrer, alleging that as a matter of law even if everything that they claimed was true, they could not prevail. The trial court agreed and dismissed the case. The young woman and her family appealed.

In the published portion of its decision, the Court of Appeal ruled that the trial court was correct in dismissing the invasion of privacy cause of action. The court said that there could be no invasion of privacy, since the information was not private once the young woman posted it on Myspace. It didn't matter that she had removed it, since it has already been public. And the court said it also didn't matter that the principal used her last name even though the last name was revealed on the Myspace site; since he was able to recognize that it was her, her last name was also not private information. So the court held that in situations like this, there is no right to privacy, and that will be law of the state of California, unless it is reversed by the California Supreme Court (or if another Court of Appeal panel were to rule differently in a similar case, that would set up a conflict that would need to be resolved by the California Supreme Court).

In the unpublished part of the decision, the Court of Appeal ruled that the trial correct was incorrect in dismisssing the intentional infliction of emotional distress claim, because the young woman and her family should have the opportunity to prove that the principal intended to cause them emotional distress, that his actions were so outrageous as to constitute conduct so extreme that it exceeds all bounds of that usually tolerated in a civilized community, particularly in light of the fact that the principal was in fact the principal at the school that the younger sister attended, and that he did cause them severe emotional distress. So this is good news for the young woman and her family, in that they at least had part of their case reinstated. But this part of the case cannot be cited in future cases, and has no particular bearing on the state of the law in California.

So, without necessarily getting too much into the technical legal details of the case, what do you think? Did republishing this "Ode" in the local paper constitute an invasion of this young woman's privacy, or that of her family. If not, was it still "wrong"? Or did she open the door to it, and is solely to blame herself?

[yovargas]

My initial thought was that it was terribly wrong to publish that without her permission and that I was surprised it wasn't illegal. But then the court pointed out - if the principal could identify her, she wasn't trying to hide her identity. I'm guessing she had pics that made her identifiable regardless of whether her full name was used. If so, I can't see how she has any claim to privacy. If not and her only ID was a generic first name (maybe the principal was clued in by the younger sister or other students who knew her page) then the decision bothers me a lot and I'd say her rights were clearly violated....

....though it just occurred to me, don't reporters on the street have to get permission from you before putting you on TV. Even if you're some girl ranting on the sidewalk about whatever, don't you need to consent to being put on TV?

[Primula Baggins]

The girl was foolish, because nothing posted on the Internet should ever be considered private.

That said, the principal was a ratfink. He should have respected her intentions even if the law doesn't compel him to do that—because he knew who she was, and because at the time he was in a position of authority over her. You shouldn't need to be legally compelled to behave with common decency in a social or professional situation.

[Túrin Turambar]

It looks like more of a case of breach of intellectual property rights rather than an invasion of privacy to me (although I know very little of IP law). I agree that publishing something on Myspace makes it public, and simply repeating the public statements of another person can never actually be an invasion of privacy.

[yovargas]

MySpace pages can be private. You can make it accessible to only a chosen few, you can not have your real name, and you can not put pictures of yourself. I don't think info written on a page like that should be considered private.

[Voronwë the Faithful]

yov, apparently she did have a picture of herself on the page, which was how the principal knew it was her.

As for your question about whether reporters need permission to publish people's images, I don't believe so, so long as the image is newsworthy.

[Lurker]

For me, it's not an invasion of privacy since it was made "public" for a few days before it got deleted. Unless, it was a "private" Myspace site (invites only) and got hacked. Once you put whatever you wrote/post on the internet "for everybody" it is not an invasion of privacy, irregardless of whether you deleted it or you've converted your site into private viewing only after it was made public for say 24 hours before you changed your mind. Whoever sees the rant can easily e-mail it to everybody in two seconds during that public period, plus the fact, the person's name and pic is on the site, it's not like the defendant deliberately found out who this "anonymous" person is.

I don't know if this is an intellectual property issue, IMHO, first, she doesn't own the site (MySpace) and she doesn't have a copyright of what she wrote. I'm not too sure about this one.

I will be blunt and say that the young woman is partly to blame for this incident since she could have written this rant as an anonymous essay to a local newspaper instead of using the internet if she really want this published. I've done it before, I was upset about something that was happening in our university and I sent the letter to a locally circulated newspaper with a request that my name be ommitted from publication, it only stated my degree and what year I was in. In fact, one of the Deans was able to read it and responded to my letter through the same newspaper.

I wonder if the Principal did have a "malicious" intent for publishing the rant since sometimes your intent was in "good faith" and yet people think it was bad. Maybe the town really needs to change or a wake up call and the Principal just agreed with her rant that he wanted to spread the word around. The problem was the principal should have asked permission first but I guess he thought it was on a public site on the internet it was okay or he could have requested the local newspaper to omit her name.

[Teremia]

Whatever the legalities of the situation, don't we feel the principal did something very WRONG, by publishing something briefly up on the internet that he could reasonably predict would get the writer into trouble?

I mean, wouldn't any of us feel queasy -- more than queasy -- wicked! -- about taking something some other one of us wrote here and then sending it along to that person's local paper to be PUBLISHED???

It's fine to say that anything on the internet is public, but we all know there's public and there's PUBLIC, and most of us have a sense that some things are meant for one (small) audience and other things are suitable for another (larger) audience.

It should be "against the rules" -- even if only the site's rules -- for someone to take content from someone else and publish it, even if under the writer's name. That's behaving AS IF you were the author (making decisions about what to do with the material), and that seems wrong.

[Primula Baggins]

Teremia, I couldn't agree more. I honestly don't know if it's in our official policies, but I know we would not tolerate someone posting someone else's post from elsewhere on one of our forums without the original poster's permission. And someone who made improper and unauthorized use of another person's post that was made here would meet with some pretty strong objections from the marshals, I feel confident.

The thing is, that kind of thing has not come up here. I think people here know what's decent behavior, as that principal did not. Maybe he was not sophisticated about the Internet. Most of us have been around it long enough to soak up some idea of good manners.

Maybe no law was broken, but standards of decent Internet behavior certainly were. I'm sure the English of the last century had a word for it. It's not exactly caddish; is it bounderish? It's certainly transgressing the bounds of gentlemanly (for either gender) behavior.

[ToshoftheWuffingas]

The English of the present century sure have a word for it.

I would like to presume that the principal of the school received some censure or professional punishment for his action. Does the story elaborate on that? As to the legality of his action I have to presume both by the judgments and by common sense that what he did was legal.
Legal doesn't mean ethical of course.

[Lurker]

It should be "against the rules" -- even if only the site's rules -- for someone to take content from someone else and publish it, even if under the writer's name. That's behaving AS IF you were the author (making decisions about what to do with the material), and that seems wrong.

Don't we do it here all the time. Cut and paste something off the net or provide a link to a "newsworthy article or opinion" without the author's permission. Why should this be different then? Just because some crazy people got angry and threatened the family doesn't mean the principal had a "malicious intent" for doing it. Would the story be different if there the town folks didn't get angry and agreed with the writer?

[Hachimitsu]

It at least seems like malicious intent. It sounds like a small town and in small towns, the slightest thing can upset the balance. Principle dude had to know that there would be some problems. Especially as he submitted it with her last name, and her younger sister went to that school.

Maybe the principal was not internet savy. If he took something far too seriously then he should have well asked other people about what to do. Especially a lot of young people do not like their home towns (as a principal he should know that). It seems at least like malicious intent to me. I have seen so many older people take stuff on the internet too seriously.
Edit: sorry I crossposted with Lurker.
To add an extra thought, the thing is did her myspace have her last name on it? Another person could have used her picture and put it on their myspace, there as no way to be 100 percent sure that the myspace picture was actually hers unless she put up her last name. It happens all the time. (I know someone who everyone thinks is, well a different gender at the very least). A lot of people don't give out their last name just so they can't be identified. Also a lot of people look very similar. There is no way the principal could have been 100% sure unless he asked her.

For the newspaper you don't have to ask permission. Once I was on half page cover of the Entertainment section of the Toronto Star. I didn't have to sign anything. Although they made it very obvious that they were taking my pic and they asked for my name.

[Voronwë the Faithful]

I agree to an extent, Lurker. The difference, though, is that the Principal either knew that this would upset people and make them angry at the writer of the Ode and her family, and did it to punish her for writing the Ode, or he should have known that it would do so. It is a matter of intention and/or discretion.

[Primula Baggins]

To clarify what I at least meant, I'm talking about posting entire articles or entire long posts from elsewhere, which we do in fact discourage here (even for news stories) unless the writer has been asked for and given permission.

And there's the malicious aspect, posting something in a different place without the writer's knowledge or permission in order to embarrass them or hurt their reputation or make fun of them. That I am sure we'd treat as a violation of the rules even if it was just a few words; that's malice and unfair, whether the person harmed is a member here or not.

[Teremia]

Also it seems to me that there's a big difference between a person here (in a tiny internet backwater) linking to or citing a source on a news site (i.e. published in the big leagues, from an internet perspective), and the Other Direction: taking some item posted on an internet backwater site (relatively more personal) and BROADCASTING it by publishing it somewhere much larger and/or much more public.

The large sites are only helped by littler sites spreading their word for them.

But it seems to me pretty clear that if you're wandering across the internet and stumble upon some sweet little grandma's web-page where she posts a sweet poem about her grandchildren, it would be Bad Behavior to repost that poem on cnn.com. Or even here! At most, you could link to it.

And then, if sweet little grandma changes her mind (as this girl apparently did) and takes down the poem, the link stops working, and that's how it should be.

If the Principal was really publishing the girl's work in order to humiliate her and get her in trouble -- he needs to be out of his job. That is just not behavior compatible with being Principal of a school.

[Voronwë the Faithful]

While I agree with you in general terms, my dear Teremia, I think it is possible (perhaps even likely) that this young woman's MySpace page had more readers than the small town paper that the principal republished the Ode in.

Here's a couple of links about the case that I found (language warning for some):

News Flash: Public Conduct Is Not Private, xxxxxxx!

Republish Someone's Offensive Opinions, and Risk Liability If You're Seen as Being Motivated By a Desire to "Punish"

Republishing MySpace Post in Local Paper Might Be Intentional Infliction of Emotional Distress--Moreno v. Hanford Sentinel

MySpace republication at issue in appeal

Local Family Seeking Law Suit Over Reprinted MySpace Journal Entry

Some interesting details in that last article, including that the editor of the paper was fired for printing the letter. I also liked the point that the blogger Eric Goldman made that the actions of the community (death threats, shots at the house, etc.) in response to the article perhaps validated the young woman's (Cynthia Moreno's) criticisms of the community.

[Primula Baggins]

But, Voronwë, she was literally choosing her audience on MySpace; she knew who was likely to read her post, and it was not people who were likely to shoot up her house. As the principal's actions prove, this was not a safe or private posting, but I think she could have a had a reasonable expectation that the only people in her town who read it would be her friends.

Anyway, risky behavior on the victim's part doesn't justify the behavior that vicitimized her, as I'm sure you'd agree. "She had it coming" sounds sour even in this context.

[Dave_LF]

I think it is relevant that it was submitted as a letter to the editor under her name. This falsely creates the impression that the author deliberately submitted it for everyone in town to read. It would be different if the principal had written a letter under his own name which said "look what so and so said on her MySpace page".

[Lurker]

How could she literally choose her audience on the internet? Her site public not private anybody who has an internet can log on and look at it. I don't buy that small town folks don't have kids that have a MySpace site as well. If I were the defendant's lawyer I would like to question the appelant what made her delete the post anyways, maybe there were threats already even before the principal had it published on the local paper. IMHO, both the appelant and the defendant are both at fault for their behaviour.

[Maria]

Isn't this copyright infringement at the very least?