Republishing MySpace Post in Local Paper Might Be Intentional Infliction of Emotional Distress–Moreno v. Hanford Sentinel
By Eric Goldman
Moreno v. Hanford Sentinel, Inc., 2009 WL 866795 (Cal. App. Ct. April 2, 2009)
This is one of the most interesting cases I’ve seen in a while. Moreno was a UC Berkeley undergraduate who grew up in Coalinga, a small town in California’s Central Valley whose attractions include a prison, a mental health institution and Harris Ranch, one of the most odoriferous spots on Highway 5. (Coalinga was also the site of a big quake in 1983). After revisiting her hometown, Moreno posted an essay, “An Ode to Coalinga,” on her MySpace page. I have not seen the ode, but it was a 700 word essay that started “the older I get, the more I realize how much I despise Coalinga” and then made very negative comments about the town and its residents. Moreno apparently had a change in heart and took the essay down in 6 days. However, while it was posted, the Coalinga high school principal saw the post and submitted it to the Coalinga Record newspaper, which published it as a letter to the editor under Moreno’s full name. The community response to the published essay was severe; according to the court, “Appellants received death threats and a shot was fired at the family home, forcing the family to move out of Coalinga. Due to severe losses, [the dad] closed the 20-year-old family business.”
Moreno and some of her family members sued a variety of defendants for public disclosure of private facts and intentional infliction of emotional distress. The newspaper defendants were dismissed through an anti-SLAPP motion to strike, leaving the principal and the school district as the defendants.
The privacy invasion claim was easily rejected. Once Moreno posted the essay to an open-to-the-public MySpace page (even if only briefly), it was no longer private. As the court says, “the fact that Cynthia expected a limited audience does not change the above analysis. By posting the article on myspace.com, Cynthia opened the article to the public at large. Her potential audience was vast.” It also did not matter that Moreno did not use her last name on her MySpace page; the court says that her identity was readily ascertainable from her MySpace page (which included a photo)..
However, the intentional infliction of emotional distress claim wasn’t ready to dismiss. The jury will get to decide if the defendants’ conduct was extreme and outrageous. Personally, I would like to know more why the principal did what he did.
Observations about this case:
1) According to this article, the Coalinga Record editor who republished the essay was fired.
2) Although the newspaper publishers fortunately escaped liability on anti-SLAPP grounds, if they had republished the essay only online, it should have been an easy 47 USC 230 win.
3) You know the cliche: never post anything online that you don’t want repeated on the front page of the newspaper. Proven true once again.
4) And on that front, I think some folks assume that they can “take back” Internet-published content by taking it down. As this case reinforces, in some circumstances there is no “do-over.” As I describe in my talks on blogs and social networking sites, every time I hit the “publish” button, I’m betting my house. In this case, Moreno effectively bet her parents’ house and business when she hit the publish button.
5) The court notes that a copyright infringement claim isn’t in front of it. I wonder what the publishers’ copyright liability analysis would look like. I suspect the copyright damages wouldn’t be great, but I still wonder why the claim wasn’t apparently brought.
6) This case provides more evidence that community members don’t like to see their community disparaged. I’m reminded of the recent James Andrews kerfuffle. Andrews, a PR executive at Ketchum, was on his way to Memphis to make a presentation at FedEx about using social media when he Twittered “True confession but i’m in one of those towns where I scratch my head and say “I would die if I had to live here!”” That didn’t go over so well with the FedEx folks following his Twitter account.
7) Nevertheless, I wonder if the violent and ostracizing community response to Moreno’s post didn’t in fact validate some of her critiques.
SEPTEMBER 2010 UPDATE: The jury ruled that the principal’s conduct was outrageous but did not cause any damages, so Moreno ended up getting nothing. The Fresno Bee posted a copy of Moreno’s initial post.