No Claim Based on Perez Hilton’s Publication of Unsolicited but Inflammatory Reader Email – Wargo v. Lavandeira

[Post by Venkat Balasubramani]

Wargo v. Lavandeira, JAMS Arbitration No. 1220041183 (Mar. 24, 2013)

Lavandeira runs the popular Perez Hilton website, which has been involved in its fair share of legal disputes.

In response to an item (presumably about Angelina Jolie—the dispute stems from an event in 2007!) posted by Perez, Wargo sent him the following email:

Perez you are a FAT GAY PIG! Angelina is a ugly whore! You love her because she is a Fag lover! Your brother is a gay little jerk just like your fat ugly ass! MANGELINA is a disgusting gross skank.

The subject line of the email read: “I Hate Skankelina the Homewrecker.” Screen Shot 2013-04-16 at 7.01.51 AM.pngThe opinion does not disclose any facts indicating that Wargo and Lavendeira had a business or other relationship. [What would prompt a stranger to send such an animated email to Perez left me scratching my head, but to each her own, I guess.]

Perez promptly published the email, along with Ms. Wargo’s email address. Unfortunately for Ms. Wargo, she had sent the above email using her work email address. As a result, executives at the company she worked at “received a flood of angry emails protesting [Ms. Wargo’s] comments.” Wargo’s employer turned around and fired her.

The dispute raised the question of whether Lavandeira’s publication of the email violated the terms of PerezHiton.com website.

PerezHilton.com’s Applicable Terms: The site’s terms provided that if users “post content or submit material” they grant the site a broad license to reproduce and use such content. Separately, the site had a privacy policy which stated that it

respects [the] privacy [of end users] and is committed to protecting it at all times.

A section of the policy talked about what “personal information” the site collected and what it did with such information. Reminiscent of IMDb’s privacy policy, PerezHilton’s policy broadly described information that users “enter on [the] website or give [the] site any other way.” A separate section talked about sharing, and as with IMDb stated that information would be “shared only with or for third-party service providers, business transfers, and to comply with the law, etc.” [This is the arbitrator’s description.]

Discussion: The arbitrator first says that no reasonable person would interpret the site terms to keep the content of the email confidential. Wargo’s email to Lavandeira is exactly what PerezHilton.com is in the business of publishing. Indeed, the terms grant a license to the site to broadly exploit any content submitted to it. Second, the arbitrator says that although the privacy policy provides for some protection for contact information, these protections are aimed at limiting when the site can disclose contact information for direct marketing purposes (i.e., to conform the policy to the requirements of California’s Shine the Light law). The policy also distinguishes between visitors and members of the site. Wargo was a visitor and not a member. Thus, her breach of contract claim fails.

The arbitrator also says that even if the policy somehow safeguarded her information, her breach of contract claim fails for causation. She was fired from her job for violating her employer’s network usage policy, and not for anything Lavandeira did. As a bonus, the court says that her own unclean hands also prevent her recovery.

Wargo brought a variety of other claims, including an invasion of privacy claim, and the arbitrator easily rejects these as well. She had no expectation of privacy in the material she submitted (including her name):

it is not reasonable for a visitor to a gossip website to expect privacy for gossipy submissions.

For similar reasons, Wargo’s claim for outrage and fraud fail as well.

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Sigh. When will we learn that unsolicited emails you send people are not subject to some sort of magical audience-blogger privilege that allows the sender to restrict their publication? The arbitrator may have taken the route that the email was not subject to the privacy policy at all, but instead, he reads the policy to impose narrow limitations on what the site can do with contact information it collects.

It’s worth noting that the privacy policy in this case was very similar to the policy in Hoang v. IMDb. Given how much legal documents get copied, this is not surprising. I’m not implying that either the lawyers for IMDb or Perez copied anyone else’s documents, it’s just that certain forms become the standard, and they end up being very widely used. Interestingly, I think the form policy could use some revising, particularly when it comes to distinguishing between various types of information and the various ways it can end up in a site operator’s hands. [I'll save my thoughts on this for a separate post.]

This case is somewhat reminiscent of Moreno v. Hanford Sentinel and of course the recently concluded Hoang v. IMDb cases. Both long, drawn out battles involving privacy claims that went to juries where plaintiffs were awarded nothing. (In Moreno, the sole remaining claim that went to a jury was an infliction of emotional distress/outrage claim; still it was privacy-based.) Maybe the takeaway is that damages are tough to prove in these types of situations? If you voluntary put the information out there, it’s tough to muster up jury sympathy based on misuse of the information, at least where there are no clear restrictions in place?

It’s tempting to chalk this up to another loss for privacy plaintiffs but the claims here were unmoored from any sense of what the average person would find actionable. Perhaps I’m biased as a blogger, but it’s unreasonable to think that a blogger won’t share an unsolicited email, particularly one that is so inflammatory. Doubly unreasonable when that blogger is Perez Hilton!

Other coverage:

Eriq Gardner: Perez Hilton Wins 5-Year-Long Dispute Over Publishing Woman’s Mean-Spirited E-Mail

Related posts:

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

Privacy on Trial: Reflections on Hoang v. IMDb