Moreno v. Hanford Sentinel, Inc.
Filed April 2, 2009, Fifth District
Cite as 2009 SOS 1963

Publishing an Ode posted on Myspace.com, not Invasion of Privacy

Appellant Cynthia Moreno (Cynthia) wrote “An ode to Coalinga” (Ode) and posted it at her personal journal on myspace.com.

The Ode was written following her hometown visit to Coalinga. It contained negative comments about the place and its inhabitants. About a week later, Cynthia removed it from her journal.

While Cynthia was attending the University of California at Berkeley, her parents and sister, however were living in Coalinga.

Respondent Roger Campbell, principal of Coalinga High School and employee of respondent Coalinga-Huron Unified School District, submitted the Ode to Coalinga Record, a local newspaper, before Cynthia could remove it from her Myspace account. Consequently, the ode was published and was attributed to Cynthia using her full name.

The published Ode ignited sentiments from the locals. The residents reacted violently by threatening the family and firing at their family home. The incident forced Cynthia’s parents to move out of Coalinga and close their 20 year old family business.

As a result, Cynthia filed a complaint for invasion of privacy and intentional infliction of emotional distress. She included as defendants Lee Enterprises, Inc., Lee Enterprises Newspapers, Inc., and Hanford Sentinel, Inc., the publishers of the Coalinga Record.

However, complaints against the publishers were dismissed following a motion to strike by considering it a SLAPP suit (strategic lawsuits against public participation).

The trial court sustained a demurrer to the complaint without leave of court. It concluded that posting an article in Myspace was not a ground for “invasion of privacy and/or intentional infliction of emotional distress against a person who submits that article to a newspaper for republication.”

Cynthia appealed the dismissal to the California Court of Appeal. The appeal court made the following rulings:

1. Lack of cause of action for invasion of privacy
   
   The elements of an action for invasion of privacy are “(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.”
   
   The Ode was not private as it was published on myspace.com. By posting the Ode on the site, Cynthia made it accessible to anyone who has computer.
   
   Cynthia contended that to be a private fact, the expectation of privacy need not be absolute. However, the fact that she expected a limited audience to read the Ode was of no consequence. By posting the Ode, Cynthia opened it to the public at large.
   
   Removing the Ode from her journal account was also of no moment. The public had already made access of the same in those days that the Ode was posted.
   
   Cynthia’s surname was not private. Although she only used “Cynthia”, her full name could be readily ascertainable from her Myspace account. Further, there was no allegation that Campbell obtained her full name from a private source.
   
   Since there was no invasion of Cynthia’s privacy, Cynthia’s parents and sister could not allege violation on the same invasion. In addition, invasion of privacy is a personal one.


2. It is the jury’s responsibility to determine if Campbell’s conduct not sufficiently extreme and outrageous to result in liability for intentional infliction of emotional distress.
   
   “The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress.”
   
   To determine whether a certain conduct is outrageous or not, it is for the jury, to assess the same. In this case, it was the trial court which ruled that Campbell’s acts did not meet the “standard of outrageousness necessary to constitute a cause of action for intentional infliction of emotional distress as a matter of law.”
   
   Hence, the trial court erred in sustaining the demurrer to the intentional infliction of emotional distress cause of action.


3. The trial court properly denied the leave to amend the invasion of privacy
   
   There was no reasonable possibility that the defect in the complaint could be cured by amendment. Moreover, Cynthia’s allegation of conspiracy was unmeritorious.
   
   Since the suit against the publishers of Coalinga Record was dismissed from the action under the anti-SLAPP statute, Campbell could not be held liable for conspiracy if the alleged co-conspirator was not subject to liability for the alleged tort.
   
   Considering the following points, the appeal court reversed the decision of the trial court in sustaining the demurrer to the intentional infliction of emotional distress and affirmed all others.