Can We Rely on Privacy Policies?
posted by Woodrow Hartzog
With the recent case of Saffold v. Plain Dealer Publishing Co., involving a newspaper website that outed an anonymous commenter who was a judge, we invited Woodrow Hartzog to write a post about these issues. Woodrow is the author of a terrific article about the enforceability of the privacy policies (via promissory estoppel) of online communities and social network websites, forthcoming in Temple Law Review. — DJS
In this employment dispute, the plaintiff William McVicker subpoenaed Trib Total Media, publisher of the YourSouthHills.com, for information disclosing the identities of a number of users commenting pseudonymously on their website. The plaintiff argued that the identities of the users were needed to impeach the testimony of the defendants who fired him.
The United States District Court for the Western District of Pennsylvania denied McVicker’s motion to compel the publisher to reveal the identities of the website’s users. The court based its denial on several grounds including the fact that “disclosure of the anonymous internet speakers’ identities is not appropriate under the rights guaranteed by the First Amendment.” (See the Citizen Media Law Project’s First Amendment analysis here.)
While I wish the court had provided more detailed analysis regarding the creation of an expectation of privacy, I don’t think the decision should be given short shrift. While the court doesn’t explicitly mention it, it seems to be making a finding based on a reliance of the website’s representation of confidentiality. The court specifically identified the vague language used by the website that was seemingly intended to instill a sense of confidence and trust that the website will protect users’ personal information.
These terms explicitly lay out the bargain proposed by the website: We want you to contribute to the website. In return, we will protect your privacy. As a result, phrases such as “the company may disclose your information [when it] believes it is reasonably required to do so” cannot be interpreted in isolation. Instead, terms in online agreements must be couched within the broad promise of confidentiality and attempt by the website to induce a user’s reliance on confidence in exchange for revenue-generating, personally identifiable information.
Consequently, the McVicker decision is interesting not only for the explicit language used by the court, but also for the reliance interest which seemingly supported its conclusion. This decision could serve to foreshadow the result in Saffold v. Plain Dealer Publishing Co. as it is seemingly in line with Dan’s analysis of claims for breach of contract, promissory estoppel, and breach of confidentiality.
Woodrow Hartzog is a Roy H. Park Fellow and Ph.D. student at the University of North Carolina at Chapel Hill School of Journalism and Mass Communication.