• California Court of Appeal Says MySpace Not Private
  • April 17, 2009 | Authors: Kelli L. Sager; Jeff Glasser
  • Law Firm: Davis Wright Tremaine LLP - Los Angeles Office
  • In a decision that reinforces the application of traditional free speech protections to claims arising from Internet publications, the California Fifth District Court of Appeal has held that a plaintiff may not maintain an action for invasion of privacy based on the republication of information she voluntarily posted to her MySpace.com page.

    Writing for a unanimous three-judge panel, Justice Bert Levy found that no reasonable person would have an expectation of privacy regarding information that he or she has freely disseminated on a public social networking Web site. “A matter that is already public or that has previously become part of the public domain is not private,” according to the court.

    In Moreno v. Hanford Sentinel Inc., No. F054138 (Cal. Ct. App. Apr. 2, 2009), plaintiff Cynthia Moreno posted an article on her MySpace page titled “An Ode to Coalinga,” which railed against the Central California town where she grew up. After the principal at Moreno’s former high school convinced a friend to publish the ode in the local newspaper, the Coalinga Record, Moreno and her family claimed that they were so severely harassed by local residents that the family was forced to move out of town. Moreno and other family members sued the principal and the newspaper publishers1 for invasion of privacy by publication of private facts, and for intentional infliction of emotional distress.

    In the published portion of the decision, the Court of Appeal rejected Moreno’s privacy claim on the ground that the allegedly “private facts” were not actually private. As the court explained, whether or not Moreno intended her article to reach only a limited audience, “[b]y posting the article on myspace.com, Cynthia opened the article to the public at large. Her potential audience was vast.” The court also rejected Moreno’s claim that her name was private because the article only used her first name, noting that “her identity was readily ascertainable from her MySpace page.2

    This decision is consistent with a 2005 ruling from a federal district court in San Diego, which held that the Associated Press did not violate the privacy rights of Navy SEALs by republishing photographs found on the Internet that depicted the SEALs roughing up detainees in Iraq. Four Navy Seals v. Associated Press et al., 413 F. Supp. 2d 1136 (S.D. Cal. 2005). The district court held that because the plaintiffs had willingly taken these photographs and allowed them to be placed on the Internet, their privacy was not invaded when the same photographs were widely distributed by the Associated Press. Id.

    Both Moreno and Four Navy Seals applied protections against privacy claims that developed in response to claims against traditional media companies. For example, more than two decades ago, in Sipple v. Chronicle Publishing Co., 154 Cal. App. 3d 1040 (1984), the California First District Court of Appeal found that plaintiff Oliver Sipple’s disclosure of his sexual orientation to hundreds of people in San Francisco barred his invasion of privacy claim against the San Francisco Chronicle, which had reported that Sipple was gay in a story describing his heroic act in saving President Gerald Ford’s life from an attempted assassin. See also Brewer v. Hustler Magazine, Inc., 759 F.2d 527 (9th Cir. 1984) (no cause of action for violation of right to privacy from magazine publication of plaintiff’s photograph when plaintiff already had distributed it to approximately 200 people in the advertising industry).

    These recent decisions help to limit the threat of invasion of privacy claims arising from the republication of content that a prospective plaintiff has posted on the Internet for the world to see. Under these circumstances, a defendant who “merely [gives] further publicity” to information that already is “public,” by virtue of its dissemination on the Internet, can and should be protected.


    1 The publishers prevailed on an anti-SLAPP motion, which was not challenged on appeal.

    2 The court also rejected the privacy claim brought by Moreno’s family members for the same reason, as well as on the ground that privacy rights cannot be asserted by family members merely based on their relationship to the individual identified in the publication. In an unpublished portion of the decision, however, the court held that an emotional distress claim alleged against the individual who supplied the article to the local newspaper could not be decided on demurrer, since “reasonable people could differ” about whether this action was “extreme and outrageous.”