A California appellate court rejected the invasion of privacy claims of a UC Berkeley student whose online rant against her hometown resulted in a firestorm of negative publicity and fierce reaction from local residents. Cynthia Moreno wrote “An Ode to Coalinga” and posted it on her online journal on her MySpace page. In the ode to her hometown located in central California, Moreno ranted against the town and its inhabitants. The local newspaper published the ode after the town’s high school principal sent the newspaper a copy printed off the internet. Unfortunately for Moreno and her family, the town’s residents reacted violently and forced Moreno’s family to shut down their business and move out of town.

In  Moreno v. Hanford Sentinel, Inc., et al., the California court of appeal held that Moreno cannot state a claim for invasion of privacy because her MySpace posting was available to the public. This was the case even though she had intended the posting only for her MySpace friends, removed the posting after six days, and the posting did not include her last name. The court found that once the ode was posted on MySpace, it was available to the public; and her MySpace page included her identity and her picture. Therefore, the court held that she could not have had a reasonable expectation of privacy. Nor could her family state a privacy claim because the right of privacy is purely personal. The appellate court did, however, send the case back to the lower court to decide Moreno’s claim for intentional infliction of emotional distress.

The decision confirms that employers can review a prospective or current employee’s online postings that are readily accessible to the public, even if intended for just the author’s friends on a social networking site. Employers do need to tread with more caution, however, before accessing a social networking profile or other on-line forum that is password protected or otherwise restricted. The decision in Moreno would not apply to such sites because access to the MySpace page in that case was unrestricted.

This entry was written by Gregory Iskander, Of Counsel in Littler's Walnut Creek office.