"People who live in glass houses should dress in the basement." That’s an old kid’s joke (if you remember) which came to mind while reading the opinion in Sandler v. Calcagni, 2008 U.S. Dist. LEXIS 54374 (D. Me. July 16, 2008). Kids joke or no, it suggests the reasonable principle that people who want their private lives to remain private should not be posting private information on a publicly accessible social networking site.
Posting personal information on social networking sites has become more problematic as job recruiters, and now attorneys conducting discovery or vetting jury pools, are looking to these sites for revealing information about potential hires, adversaries, witnesses and prospective jurors.
Sandler v. Calcagni involves a dispute between high school students that escalated into petty criminal charges against one of the students, a retaliatory "tell-all" book written by that student’s parents and printed by an online print-on-demand company, and a resulting lawsuit by the second student against the first student and her parents for defamation and privacy torts. The opinion is of interest for its ruling that the print-on-demand company is not liable for defamation as a publisher of the tell-all book, and that point, an important one for online print-on-demand companies, is addressed in the August edition of the New Media & Technology Law Newsletter. But another point in the opinion is interesting as well, that is, the court’s ruling that the second student’s invasion of privacy claim against the print-on-demand company, based on public disclosure of private facts, was negated by her own posting of the claimed private information on her publicly accessible MySpace page.
The court noted that Maine has adopted the Restatement (Second) of Torts, which provides that the tort of public disclosure of private facts requires that: "the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." A Maine opinion was cited for the proposition that the matter in question must be one that is "truly private, rather than public."
In response to a dispositive motion by the print-on-demand company, the plaintiff admitted that three of the six claimed categories of private facts upon which the student based her claim were not, in fact, private. These included excerpts and summaries of the student’s MySpace page that were reproduced in the book.
The plaintiff’s MySpace postings also figured in the court’s ruling on the student’s claim that statements in the book concerning her receipt of "professional help" were private facts. The court ruled that because the plaintiff had admitted on MySpace that she had sought psychological help in college, that fact not only was not private, but her admission of it on MySpace demonstrated that "she did not believe that the disclosure of this fact to be highly offensive."
The court ultimately concluded in the alternative that the public disclosure of private facts claim against the print-on-demand company be dismissed in its entirety for the same reasons that the defamation claim was dismissed, i.e., that the print-on-demand company did not have sufficient knowledge of the contents of the book to hold it liable. The company was dismissed completely from the lawsuit. Some claims remain between the two students and book authors, so the case goes on.