Invasion of Privacy and Spoliation on MySpace

It is true that mass communication is no longer limited to a tiny handful of commercial purveyors and that we live with much greater access to information than the era in which the tort of invasion of privacy developed. A town crier could reach dozens, a handbill hundreds, a newspaper or radio station tens of thousands, a television station millions, and now a publicly accessible webpage can present the story of someone’s private life, in this case complete with a photograph and other identifying features, to more than one billion Internet surfers worldwide. This extraordinary advancement in communication argues for, not against, a holding that the MySpace posting constitutes publicity.

Judge Kevin Ross, Minnesota Court of Appeals, Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. Ct. App. 2009).

The Court of Appeals of Minnesota discussed at length a case involving invasion of privacy on MySpace.  The case involved a MySpace profile named “Rotten Candy” being created about the Plaintiff, outing her for contracting a sexually transmitted disease from an extramarital affair and accusing her of being addicted to plastic surgery.  Yath, 6-7.    

The Plaintiff’s medical facts were learned from the clinic where she was treated.  The case includes a soap opera set of facts with people who knew the Plaintiff gaining unauthorized access to her medical information at the clinic.  The MySpace page was not made at the medical clinic, because access to MySpace was blocked by the clinic.  The profile was traced back to an Internet Protocol address to a business where the sister of one of the Defendants worked.  Yath, 7.  

Case Procedural History

The Plaintiff sued multiple Defendants for invasion of privacy, negligent infliction of emotional distress and state law claims for disclosing the Plaintiff’s medical file.  Yath, 8. 

The District Court denied a spoliation claim for deleting computer files, granted summary judgment for the clinic and for one of the other Defendants.  Yath, 8-9.  The Court also dismissed the claims against two of the other Defendants.  Id.

Relevant Case Issues

The Court of Appeals address multiple questions, however this article focuses specifically on the following issues:

Issue 1: Did the District Court abuse its discretion by denying the Plaintiff’s spoliation of evidence motion against Defendant Phat after she “deleted computer files that might have revealed her involvement in disclosing private medical data?” Yath, 9.

Issue 2: Did posting on MySpace meet the “publicity” requirements for invasion of privacy? Id.

Issue 3: Did the facts still justify a summary judgment against the Defendants?  Id.

Spoliation of Browser History & Temporary Files

The Plaintiff claimed Defendant Phat deleted her internet browser history and temporary files, which justified sanctions for spoliation of evidence.  Yath, 12. 

The hornbook definition of Spoliation is “the destruction of evidence.”  Yath, 11-12.  Sanctions can be ordered when a person knew or should have known that the destroyed evidence “was relevant to pending or future litigation.”  Yath, 12. 

The Court of Appeals found no error in the District Court’s finding of no spoliation, because the Plaintiff did not provide sufficient support for her spoliation claims. Yath, 12.

Below is a brief timeline of the computer subpoena:

July 3, 4:51 PM: Plaintiff subpoenaed Defendant Phat’s computer by fax.

July 5: Defense attorney gets fax due to 4^th of July holiday.

July 5: Attorney tells Defendant about subpoena.

July 16: Computer produced for inspection. Yath, 12-13. 

The Plaintiff’s expert stated in affidavit that “No temporary internet files, browser history, internet or browser cache exist prior to July 3, 2007.”  Yath, 13.

The expert also stated that “all internet files were erased and scrubbed clean as of July 3, 2007 at approximately 8:05 p.m.”  Yath, 13.

The Plaintiff argued that the “coincidence” between the timing of the subpoena and the data loss was “too coincidental.”

The District Court did not find any spoliation, opining that the data loss may have been a routine maintenance operation.  Yath, 13.  Additionally, the District Court did not find the Plaintiff met her burden to show the Defendant “intended to destroy or hide evidence.”  Yath, 13.  The Court of Appeals did note the timing of the deletion was suspect; however the Plaintiff did not provide the District Court with compelling evidence to find spoliation.  Yath, 14. 

Publicity of Information on MySpace

The Court of Appeals “Majority Opinion” and “Concurring Opinion” provide two different views on what constitutes publicity on MySpace.  The Majority took a much broader view of “publicity” then the Concurring opinion. 

The Court of Appeals disagreed with the District Court that the “temporary posting” of the Plaintiff’s medical records “failed to meet the ‘publicity’ requirements for a successful claim.”  Yath, 14.  The Court of Appeals rejected the District Court’s view that the posting was not seen by enough people.   Yath, 14-15.

The Plaintiff’s invasion of privacy claim was based on the publication of private facts (the publication of her medical information).  Yath, 14.  To survive a motion for summary judgment, the Plaintiff needed to show the following:

(1) The Defendant gave “publicity” to a matter concerning the Plaintiff’s private life;

(2) The publicity of the private information would be highly offensive to a reasonable person; and

(3) The matter is not of legitimate concern to the public. Yath, 15.

Rule for “Publicity”

The Court of Appeals cited the Restatement (Second) of Torts definition of “publicity,” which states that “the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.”  Yath, 15, citing Restatement (Second) of Torts § 652D.

The Court of Appeals further described the rule for publicity as being two separate tests:

 …there are two methods to satisfy the publicity element of an invasion-of-privacy claim: the first method is by proving a single communication to the public, and the second method is by proving communication to individuals in such a large number that the information is deemed to have been communicated to the public. Yath, 15-16. 

Majority Opinion on MySpace Publicity

The majority took the position the MySpace profile was, “publicity per se” and within the first method of publicizing a single communication.  Yath, 16-17.   The Court found that publishing the medical information on the MySpace profile was “materially similar in nature to a newspaper publication or a radio broadcast because upon release it is available to the public at large.”  Yath, 17.

The Court of Appeals rejected the District Court’s reasoning that publicity argument failed because only a small group (6 “friends”) saw the information over a 24 to 48 hour period.  Yath, 17-18. 

The Majority Opinion compared the “small group” argument to a small newspaper with a small readership or a late night radio show.  The Court of Appeals stated the number of people who viewed the posting is irrelevant, because private information was communicated in a public forum (in this case, a public MySpace profile), triggering the invasion of privacy tort.  Yath, 18-19.

The Concurring Opinion

Judge Matthew Johnson took issue with the Majority Opinion’s view of publicity for the invasion of privacy.  Judge Johnson argued that the Majority unnecessarily expanded the rule when there was evidence that the MySpace profile was sent to between 60 to 80 people.  Yath, 41-42. 

The Plaintiff polled ten of her MySpace friends after learning about the “Rotten Candy” profile and found out all ten had seen the fake profile.  Yath, 42. The Plaintiff’s now ex-husband had even received a friend request from “Rotten Candy” as well.  Id.

 The Concurring Opinion stated it was “unnecessary to create a per se rule that any posting of private information on the Internet constitutes publicity.”  Yath, 42.

Lost for Other Reasons

The Court of Appeals did not overturn the summary judgment findings because the Plaintiff “did not produce any evidence that Phat or Fairview were involved in creating the MySpace.com” profile.  Yath, 24.  As such, the invasion of privacy claimed failed. 

Bow Tie Thoughts

Courts  faced with Web 2.0 litigation are adopting traditional tort and contract law principles to online conduct.   Defining what constitutes “publicity” is a question courts will have to address as similar cases as litigated.

I think the Court of Appeals had a very narrow reading of the duty to preserve and spoliation.  In broad terms, if a party reasonably anticipates litigation, they have a duty to preserve evidence that pertains to the lawsuit. 

If the Defendants were on notice after a triggering event (such as being sued for a fake MySpace profile), it does not take any leap of faith that internet history and temporary files go to the heart of the lawsuit for who created, maintained or accessed the fake profile. 

While this is a state court action, in the Federal Courts, a party only qualifies for the “safe harbor” protection under Federal Rule of Civil Procedure Rule 37(e) when ESI is lost “as a result of the routine, good-faith operation of an electronic information system.”  Fed. R. Civ. Proc. 37(e).  Moreover, “good faith” requires a party to “intervene to modify or suspend certain features of the routine operation of a computer system to prevent the loss of information,” according to the Advisory Committee Notes to the Federal Rules of Civil Procedure.

One might be able to argue the Defendant in this case did not act in good faith, and thus do not qualify for any “safe harbor” protections for the loss of data, because they did not suspend any routine maintenance operations after being on notice of a lawsuit.

Questioning the Defendant when they reasonably anticipated litigation, if their internet browser only saved visited websites or temporary files for a limited number of days (or until a system restart), when their computer performed routine maintenance (i.e., Friday nights at 8:00 pm), and whether they took any steps to suspend this operation, would be good questions to ask in special interrogatories or deposition.  Perhaps showing the computer’s routine maintenance was not scheduled until sometime after July 3 would have been sufficient to show the intent to hide or destroy evidence. This examination would be highly fact intensive.

MySpace and MyDefamation: Tagging Your Way to a Libel Suit

A lot can happen in 140 characters.  Someone can tag their way right into a lawsuit with a Wall to Wall Message, a public note or a Tweet.  This is one of those cases.

Procedural History

In a defamation case, a Philadelphia attorney (Plaintiff Corcoran) with a boutique copyright practice sued the Executor of the Estate (Defendant McCabe) of one of the Plaintiff’s former clients. Corcoran v. McCabe, 2009 Phila. Ct. Com. Pl. LEXIS 74 (Pa. C.P. 2009).

The Defendant defaulted on the Plaintiff’s complaint.  The Defendant appealed the assessment of $50,000 compensatory damages and $25,000 punitive damages for his defamatory comments. Corcoran, 1.

What Happened?  The Case Facts

The Plaintiff attorney was starting a firm that specialized in copyright infringement. Corcoran, 1

In one of the Plaintiff’s cases, he represented a group of local musicians in a suit against Microsoft.  Corcoran, 2.

One of the musicians was the Defendant’s brother, who died in 2000.  The Defendant acted as his brother’s Executor.  Corcoran, 2.

After the Microsoft case settled, the Plaintiff put the settlement funds in his IOLTA account for payment to his clients.  Corcoran, 2.

The Plaintiff issued an “Acknowledge Distribution” that stated all the costs in the copyright suit.  This statement was given to the Defendant.  Corcoran, 2.

The settlement funds could not be distributed to the Defendant Executor until the Estate processed and the state issued an inheritance tax clearance.  Corcoran, 2. 

The Plaintiff attorney not only explained these issues to the Defendant, he volunteered to help pro bono.  The Plaintiff processed the required papers and was waiting for the tax clearance.  Corcoran, 2-3.

No Good Deed…

The Defendant posted the following statement on a MySpace profile on October 22, 2007, with full knowledge of the Plaintiff’s actions on his brother’s behalf:

Bored? Call Connor Corcoran and ask him why Sean McCabe’s share of the settlement went in his pocket. Neither Sean’s family or his estate has received any money. It has been well over a year since suit was settled and the rest of the members received their share. Corcoran, 3.

The posting was reposted on an internet entertainment blog along with the attorney’s phone number.  Corcoran, 3.

The tax approval was made on November 29, 2007.  Immediately thereafter, the Plaintiff sent the Defendant his brother’s share of the settlement check.  Corcoran, 3.

The Plaintiff’s Damages

The Plaintiff had not had any new copyright infringement clients since the Defendant’s October 22, 2007 posting about him “pocketing” his client’s settlement money. Corcoran, 3.

The Court’s Findings

The Court wasted no time saying the Defendant’s actions were defamatory.  The Plaintiff Attorney represented both the Defendant’s brother and his Estate properly and acted correctly.  Corcoran, 4. The statement was made with no legal right.

The Court quashed the Defendant’s appeal on the procedural grounds because “post trial relief must be filed within ten days of the decision in a case of a trial without a jury.” Corcoran, 4-5.

Social Networking Sites & Defamation

People using social networking sites often express statements that they normally would not state in person.  People often “flame” others for political views, status messages and reasons too numerous to name.   This will result in litigation originating from 140 characters of “Status message” litigation or “Tag Defamation” only increasing with time.

Standards to Identify Anonymous Posters for Defamation

The internet is creating emerging legal issues, from jurisdiction to discovery. The identification of anonymous bloggers-posting defamatory statements on the internet–is one of those issues.  

Judge Rory J. Bellantoni, Ottinger v. Non-Party The Journal News

In Ottinger v. Non-Party The Journal News, 2008 N.Y. Misc. LEXIS 4579 (N.Y. Sup. Ct. 2008), the Plaintiff sued Doe Defendants for anonymous posts on a newspaper website.  The anonymous postings on the newspaper blog claimed that the Plaintiffs bribed local government officials, had fraudulent deeds and other less than flattering statements.

The Plaintiff brought a third party subpoena against the newspaper to identify the anonymous posters.  While the posters could not be identified by viewing the newspaper blog, the individuals who made the postings had to create screen names in order to make any comments on the newspaper blog. 

The newspaper challenged third party subpoena to identify specific users who left the defaming messages.

 The Court outlined the following test to identify the anonymous posters:

 1. Plaintiff had to undertake efforts to notify the anonymous posters that they were the subject of a subpoena and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve their opposition. 

 2. Plaintiff had to identify and set forth the exact statements purportedly made by each anonymous poster than plaintiff alleges constitutes actionable speech;

 3. Court needed to review the complaint and all information to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously-named defendants and sufficient evidence to support each claim; and

 4. The court had to balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff properly to proceed.  See, Ottinger, 5.

 Points 1 and 2 were accomplished by posting the on the newspaper blog the statements at issue and the screen name that posted the statement.  The Plaintiffs had to specifically post for Point 1 (a) the existence of the special court proceeding to identify the anonymous posters, (b) the relief Plaintiffs’ sought, and (c) the fact that any individual who believed that their rights might be affected could seek to intervene anonymously in the special proceeding.  Ottinger, 5-6, citing Dendrite International v. Doe 342 N.J. Super. 134, 775 A.2d 756 (2001).

 The Court found the Plaintiff met the remaining requirements, stating that the complaint established Plaintiffs had set forth a prima facie cause of action. The Plaintiffs also produced sufficient evidence supporting each element of its cause of action, except that of constitutional malice. Ottinger, 6.  The court found the constitutional malice element would be difficult to prove without knowing who made the defamatory postings, thus the Plaintiffs did not need to meet the constitutional malice requirements for the early disclosure. 

 In this case, the newspaper had to produce any information it had on the identities of anonymous posters.  One does not need to spend much time surfing on news articles or social networking sites to see questionable insults between posters on news articles.  While people expressing themselves is protected by the First Amendment, online actions that rise to the level defamation will likely be more common with lawyers and judges facing these issues on a regular basis.