- "Undo Send"—Five More Seconds to Change Your Mind
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Gmail Labs added a new feature a few weeks ago—Undo Send. If enabled, a user has about 5 seconds to "hit the panic button" before the message is sent.
On one hand, given the time limitation, the feature's uses are limited. On the other hand, five seconds may, for example, be just long enough to realize that one made the commonly embarrassing and potentially damaging mistake of selecting "Reply to All" instead of "Reply."
- Hitting the Panic Button Too Late—Moreno v. Hanford Sentinel, Inc.
Unfortunately, there generally isn't a simple way to undo the damage an ill-conceived email or blog post (or Tweet) can do—as is the case in Moreno v. Hanford Sentinel, Inc., No. F054138, 2009 WL 866795 (Cal. Ct. App. April 2, 2009). See also Mike Mckee, MySpace Musings Aren't Private, Appeals Court Rules, Law.com, April 6, 2009.
- Background: Moreno v. Hanford Sentinel, Inc.
In 2005, after returning from a visit with her family in her hometown of Coalinga, CA, Cynthia Moreno, an undergraduate at UC Berkeley, wrote "An Ode to Coalinga" and posted it on her MySpace page. Apparently, she didn't have anything positive to say. As the court describes it,
[t]he Ode opens with "the older I get, the more I realize how much I despise Coalinga" and then proceeds to make a number of extremely negative comments about Coalinga and its inhabitants. Moreno, No. F054138, 2009 WL 866795, at *1-2.
Six days after posting the Ode, Moreno decided to take it down, but it was too late. Cynthia's high school principal in Coalinga had already read the post and given a copy to his friend, the editor of a local newspaper. The editor then republished Ode in the paper, and, of course, attributed it to Cynthia Moreno. Id. at *2.
Moreno's family received hate mail and death threats. Her father was forced to close the 20 year-old family business, and, ultimately, the family was forced to move. Id.
The family sued the principal, the school district, the editor, and the newspaper for invasion of privacy and intentional infliction of emotional distress ("IIED"). The editor and the newspaper were dismissed as defendants after winning an anti-SLAPP motion and motion to strike. The principal and the school district demurred to both of the plaintiffs' theories of liability, and the trial court sustained the demurrer on both claims without leave to amend.
On appeal, the court upheld the trial court's dismissal of the invasion of privacy claim, holding that the author of an article published on MySpace.com cannot state a cause of action for invasion of privacy against those who republished the article in a local newspaper. However, the court still allowed the case to move forward on at least one theory of liability by reversing the ruling of the trial court with regard to the claim of IIED. See Id.
- Where nothing private is revealed, there is no invasion of privacy.
Eric Goldman, at his Technology & Marketing Blog, explains the court's decision as follows:
The privacy invasion claim was easily rejected. Once Moreno posted the essay to an open-to-the-public MySpace page (even if only briefly), it was no longer private. As the court says, "the fact that Cynthia expected a limited audience does not change the above analysis. By posting the article on myspace.com, Cynthia opened the article to the public at large. Her potential audience was vast." It also did not matter that Moreno did not use her last name on her MySpace page; the court says that her identity was readily ascertainable from her MySpace page (which included a photo)...
- So, does publication on the internet necessarily bar invasion of privacy actions?
In Moreno, the court doesn't entirely foreclose upon the possibility that one may still have a right to keep something private, even if published on the internet, but it certainly doesn't provide a clear test.
Using language borrowed from a case where alleged trade secrets were leaked online, the court states "[t]he publication was not so obscure or transient that it was not accessed by others." Id. at *3. This language raises at least two questions. First, does the work have to obscure and transient even if it isn't accessed by others? Second, can a work be accessed by others, and still be obscure and transient enough to retain its private status?
The trade secrets case that the court cites in Moreno doesn't provide much guidance because, with regard to leaked trade secrets,
[t]he concern is whether the information has retained its value to the creator in spite of the publication. Publication on the Internet does not necessarily destroy the secret if the publication is sufficiently obscure or transient or otherwise limited so that it does not become generally known to the relevant people, i.e., potential competitors or other persons to whom the information would have some economic value. DVD Copy Control Ass'n Inc. v. Bunner 116 Cal. App. 4th 241, 251 (2004) (citations omitted).
Since there is no dispute over the economic value of Cynthia Moreno's Ode, most of the analysis above is inapplicable in her case. Also, the court in Moreno seems to have conspicuously omitted the language about becoming known to the relevant people.
What if Cynthia Moreno's high school principal was the only person who read the Ode? Would the Ode have then been "transient and obscure" enough to remain private?
