Two recent rulings indicate that posting private information about a third party on a social networking site will be treated as giving “publicity” of private facts that is sufficient to support a claim for invasion of privacy — regardless of the number of persons who actually view the site.
On June 23, 2009, the Minnesota Court of Appeals, in Yath v. Fairview Clinics (Case No. A08-1556), considered a case in which a worker at a clinic created a MySpace webpage in which she revealed that the plaintiff had a sexually transmitted disease, had recently cheated on her husband and was addicted to plastic surgery. The worker obtained this information by improperly accessing the plaintiff’s medical records. The record showed that the MySpace page was only up for about 24 hours before being blocked by MySpace, and may have had as few as 6 visitors.
The plaintiff sued the worker, inter alia, under Minnesota’s invasion of privacy common-law tort theory, which required her to prove: (1) a defendant gave “publicity” to a matter concerning her private life, (2) the publicity of the private information would be highly offensive to a reasonable person, and (3) the matter was not of legitimate concern to the public. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003).
The Minnesota Court of Appeals in Yath found that publication on the MySpace page, even though accessed by only a few users, was sufficient to meet the publicity element. The Court’s reasoning was based on well-established legal principles that have been recognized for decades. Citing the Restatement (Second) of Torts, a venerable treatise on common law, the Court noted that there are two methods to satisfy the publicity element of an invasion of privacy claim: (1) by a single communication to the public, or (2) by proving communication to individuals in such a large number that the matter is deemed communicated to the public.
In applying the first rule, courts around the U.S. have generally held that publication in any type of public forum, including a newspaper, the radio, a press release or in a public address to a large audience is sufficient to meet the publicity element. See David Elder, Privacy Torts § 3:3 (2002). A number of cases have held that publication on the internet also meets the publicity element of an invasion of privacy claim. See, e.g., Michaels v. Internet Entertainment Group, Inc., 5 F.Supp.2d 823 (C.D.Cal. 1998); Lambert v. Hartmann, 898 N.E. 2d 67 (Ohio App. 2008). Moreover, publication in a public forum, such as a newspaper or newsletter, will constitute publicity, even where the forum has a small distribution. Id.
Following this legal tradition, the court in the Yath case found that the number of people who viewed the MySpace web page was irrelevant, stating: “when the communication is made by offering the information in a public forum . . . the tort is triggered when the discloser makes the information publicly available, not when some substantial number of individuals actually get the information.” Yath at 14. Accordingly, it held that “the publicity element of an invasion-of-privacy claim is satisfied when private information is posted on a publicly accessible website.” Id. at 15.
This ruling is in line with another recent ruling regarding publication of private information on social networking sites. In an April 2, 2009 ruling, the California Court of Appeal considered whether a plaintiff could sustain her claim for invasion of privacy when a newspaper republished personal facts that she had originally posted on her MySpace page. See Moreno v. Hanford Sentinal, Inc., 172 Cal.App.4th 1125 (Cal. App. 2009). The California Court of Appeal noted that “a crucial ingredient” of an invasion of her claim was whether “private facts” were involved. The Court stated that “A matter that is already public or that has previously become part of the public domain is not private.” Here, the Court found that Moreno had “publicized her opinions . . . on myspace.com, a hugely popular internet site” and this “affirmative act made her article available to any person with a computer and thus opened it to the public eye . . . ” Id. at 1130.
As in Yath, the Court rejected the argument that the number of actual viewers of Moreno’s MySpace was important, noting that “[b]y posting the article on myspace.com, [Moreno] opened the article to the public at large. Her potential audience was huge.” Moreover, “[t]hat [Moreno] removed the [post] from her online journal after six days is also of no consequence. The publication was not so obscure or transient that it was not accessed by others.” Id.
My own rough survey indicates that case filings involving claims of invasion of privacy are on the rise. This is not surprising, because the rise of the internet has placed the ability to publish embarrassing information about others in the hands of every person in the world. These recent rulings mean that just because your MySpace page only has a few “friends” or your Twitter tweets only have a few followers, doesn’t mean that the words you post might not have legal consequences.