Court: Invasion of privacy doesn't require large audience

Myspace
A view of the home page of the MySpace social networking Web site.
Photo by NICHOLAS KAMM/AFP/Getty Images

A Minnesota Court of Appeals panel has held that a person whose private information is posted on the Internet may sue for invasion of privacy, regardless of how many people actually see it.

The ruling stems from the case in which an employee at Fairview Cedar Ridge Clinic in Apple Valley read an acquaintance's medical file and learned that the woman had a sexually transmitted disease. The employee told others, and then someone created a public MySpace.com Web page called "Rotten Candy," posting the information for 24 to 48 hours.

The woman sued the clinic and several individuals for invasion of privacy. But a Hennepin County judge denied the woman's claim because she had not proved that a "sufficient number of people had seen the webpage." The woman appealed.

Under a claim of invasion of privacy, a person must prove that another person gave "publicity" about another person's private life. The panel defined "publicity" as either: "a single communication to the public," or to "individuals in such a large number that the information is deemed to have been communicated to the public."

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Fairview argued that the posting on MySpace.com was essentially private, because its pages are not of general interest, like a news site. The court panel disagreed. It said the judge used the wrong definition of publicity, and should have considered whether the MySpace.com posting was a single communication to the public.

Writing for the court of appeals panel, Judge Kevin Ross said the temporary posting on the MySpace.com Web site "put the information in view of any member of the public -- in large or small numbers -- who happened by," and that the number of actual viewers is "irrelevant."

Ross said Internet communication is materially similar in nature to a newspaper publication or a radio broadcast, because once released it is available to the public at large.

But Judge Matthew Johnson wrote separately to say it's unnecessary to create such a broad rule of law, when there was evidence that the person responsible for the MySpace page sent it directly to as many as 80 persons.

He called the panel's ruling overbroad because it treats all Internet sites alike, and assumes that each Internet site is viewed or read by large numbers of persons.

"I have significant doubt whether that is true," he wrote.