South Dakota Cyber Law - Can My Online Posts Hurt My Ability To Enforce My Privacy Rights in Court?

 

A tort is a civil wrong, other than a breach of contract, for which courts usually award money damages. A tort is based on one party's breach of a duty that he or she owes the other party. Torts can result from not only physical, real-world conduct but also from online conduct. For example, under tort law, assault can take the form of a physical assault, as well as excessive and harassing online messages which place a person in substantial fear of bodily harm. Under tort law, online conduct can be just as real and consequential as physical conduct.

Tort Law is One Way to Protect Privacy

In general, the law requires us to respect each other's privacy. To enforce this duty, the law recognizes various torts against people who violate it. There are several ways a person can violate another person's privacy. In tort law, we say there are several kinds of Invasions of Privacy

Invasion of Privacy by Public Disclosure of Private Facts

This tort respects the right to keep certain facts about oneself private. The basic elements of this tort are: 1) a public disclosure; 2) the disclosed facts must have been private, not public; and 3) the disclosed facts must be offensive and objectionable to a reasonable person of ordinary sensibilities. 

Posting on the Internet - When is it Public Disclosure and When Does it Fall Short?

Courts have held that posting information on the Internet, for example on social media websites, can satisfy the public disclosure requirement. The fact that a post was temporary or removable may not matter. The number of actual viewers may not matter. The fact that the post is on a personal or viewer-restricted page may not matter. As many commentators about cyber space have said - in general, once it's out there, it's out there.

Beware of Undermining Your Own Privacy

In Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125 (2009), a college student who was visiting her hometown authored an online journal on MySpace.com disparaging her hometown. The entry was seen by a school principal, who passed it along to the editor of a local paper. The newspaper published a version of the entry. The college student sued the principal and the editor, among others. The court said that the college student had essentially made her own public disclosure by posting on MySpace.com, thereby diminishing her own privacy. The court was therefore not persuaded that the principal and others made a public disclosure.

The flip-side of the coin is that online posts of other people's private information - even to obscure or restricted online venues - can possibly qualify as public disclosure. 

Taylor Hayes
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Attorney specializing in Business & Corporate Law and Cyber Law