Judge Settles Privacy Case With Plain Dealer

Let’s say you are a newspaper and you maintain a Web site. And let’s say you invite the public to comment on stories post on that site. And let’s say that you allow the public to post comments using fictitious names in order to remain anonymous. And let’s say a commenter called “lawmiss” regularly comments on cases pending before a certain judge. And let’s say that the newspaper discovers that lawmiss is sending those comments from an email account registered to that judge. And let’s say that the newspaper decides that that information is newsworthy information and publishes a story that outs the commenter. Okay, enough with the hypothetical. This really happened. The newspaper is the Cleveland Plain Dealer, the Web site is Cleveland.com and the judge is Shirley Strickland Saffold of the Cuyahoga County Common Pleas Court. According to the judge, lawmiss is her 23 year old daughter. But in any event, that didn’t stop the judge and her daughter from filing a breach of privacy law suit against the Plain Dealer following publication of the story. The gist of the lawsuit is that folks who comment on the Web site have a reasonable expectation of privacy – that they won’t be outed. The case recently settled on undisclosed terms, although we do know that the defendants made a contribution in the name of the judge’s mother (“lawgrandma”?) to the Olivet Institutional Baptist Church Choir. So all’s well that ends well? Except that the case raises some interesting issues about what is a reasonable expectation of privacy in an online world? The Cleveland.com privacy policy provides in part:

Because no data transmission over the Internet is completely secure, and no system of physical or electronic security is impenetrable, Service Provider can not guarantee the security of the information you send to us or the security of our servers or databases, and by using the Website you agree to assume all risk in connection with the information sent to us or collected by us when you use the Website.

Would that disclaimer have gotten them off the hook? And it also says:

In addition, we reserve the right to use the information we collect about your computer, which may at times be able to identify you, for any lawful business purpose, including without limitation to help diagnose problems with our servers, to gather broad demographic information, and to otherwise administer our Website.