17A MAPRAC § 43.9
 
17A Mass. Prac., Prima Facie Case § 43.9 (5th ed.)
Massachusetts Practice Series TM
Current through the 2011 Pocket Parts

Prima Facie Case
Richard W. Bishop[FNa0]

Part
I. Civil Actions
Chapter
43. Libel and Slander
A. The Plaintiff's Case

§ 43. 9. Invasion of privacy distinguished

West's Key Number Digest

West's Key Number Digest, Torts 8.5

Legal Encyclopedias

C.J.S., Right of Privacy and Publicity § 2

C.J.S., Right of Privacy and Publicity §§ 4 to 31

C.J.S., Right of Privacy and Publicity §§ 33 to 34

C.J.S., Right of Privacy and Publicity §§ 39 to 45

Additional References

Rodman, 10 Massachusetts Practice Series: Procedural Forms Annotated § 1051 (5th ed.)

Nolan and Sartorio, 37 Massachusetts Practice Series: Tort Law §§ 30 et seq. (2nd ed.)

The right of action for an invasion of privacy has been established in Massachusetts. In 1969, the Supreme Judicial Court enjoined the showing to general audiences of a film depicting inmates of a state correctional institution as an invasion of their privacy.[FN1]

In 1970, a statute was passed which prohibited the use of the name, portrait or picture of a person for advertising or trade purpose without his written consent and in certain cases allowed treble damages to the person whose rights were violated.[FN2]

Finally, in 1973, the right to recover damages in a tort action was clearly established by statute[FN3] which reads: “A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.”

A corporation does not have a right to privacy protected by the statute.[FN4]

It has been held that the statute dealing with the unauthorized publication of a person's name or picture must be interpreted in a way that permits it to perform its intended function without overlapping the function of the right of privacy statute.[FN5]

The interest protected by the 1970 statute is the interest in not having the commercial value of one's name, portrait or picture appropriated to the benefit of another. The crucial distinction with the unauthorized publication is whether the defendant makes an incidental use of the plaintiff's name or picture, or whether he uses it deliberately to exploit its value for advertising or trade purposes.[FN6]

The publication of a photograph of a line of people in a government building is not an invasion of privacy.[FN6.50]

At common law, it was questionable whether a right of privacy existed in Massachusetts,[FN7] and if it did, it was included under the broad definition of libel as a publication which discredited the plaintiff in the minds of a considerable class in the community,[FN8] the reason for the inclusion of this section and chapter devoted to libel.

With the enactment of the 1973 statute, however, the right of privacy was defined as something different from the law preventing libel. The statute appears to include four types of wrongs:

1. Intrusion upon the plaintiff's physical solitude.

2. Publication of private matters violating the ordinary decencies.

3. Putting the plaintiff in a false position in the public eye as by signing his name to a letter attributing to him views that he does not hold.

4. Appropriation of some element of the plaintiff's personality for commercial use.[FN9]

Only the third wrong bears any resemblance to the tort of defamation, and even there, the invasion of privacy statute does not require that the false position be of a defamatory nature.[FN10]

The statute is a broad one, and inevitably will be the subject of future judicial interpretation and refinement.

For instance, the disclosure of private facts about an employee among other employees in the same corporation can constitute sufficient publication under the privacy statute.[FN11] And while there is no conditional privilege for legitimate business communications under the privacy statute (as there is in actions of libel) the court, in determining whether the invasion of privacy is “substantial” or “unreasonable”, should weigh the employer's legitimate interest in determining the employee's effectiveness in his job and balance it against the seriousness of the intrusion on the employee's privacy.[FN12]

In the absence of a specific legislative provision to the contrary, a claim for invasion of privacy is governed by M.G.L.A. c. 260, § 2A, the general three-year statute of limitations for tort actions.[FN13]

Closely allied to the action for violation of privacy are the provisions of the Massachusetts eavesdropping statute[FN14] which grants a civil remedy to any aggrieved person whose communications are intercepted, disclosed, or used except as authorized.[FN15] The civil action does not require that the interruption rise to the level of criminal conduct covered by the penal provisions of the law.[FN16] An aggrieved person who establishes his cause of action may recover actual damages, but not less than liquidated damages computed at the rate of $100 per day for each day of violation or $1000, whichever is higher, punitive damages, and reasonable attorney fees and other reasonably incurred litigation disbursements.[FN17] The cause of action does not survive the death of either party to the action.[FN18]

A statement is considered a “fair report” and thus subject to a fair report privilege protecting those who fairly and accurately report certain types of official or governmental action to be immune from liability for claims arising out of such reports, if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.[FN19]

[FNa0] Of The Massachusetts Bar.

 

[FN1] Commonwealth v. Wiseman, 356 Mass. 251, 249 N.E.2d 610 (1969), cert. denied 398 U.S. 960, 90 S.Ct. 2165, 26 L.Ed.2d 546 (1970), rehearing denied 400 U.S. 954, 91 S.Ct. 231, 27 L.Ed.2d 260 (1970), appeal after remand 360 Mass. 857, 275 N.E.2d 148 (1971).

[FN2] M.G.L.A. c. 214, § 3A. The statute was rewritten and reenacted by St.1973, c. 1114, § 62. Certain exceptions are made for professional photographers who exhibit specimens of their work, manufacturers where the name, portrait or picture was used in connection with the merchandise, and pictures of authors, composers and artists used in connection with their work.

Tannenbaum v. Grady, 413 Mass. 717, 604 N.E.2d 16 (1992). A personal injury attorney's truthful response to an interrogatory that he had consulted with a toxicology professor did not constitute the use of the professor's name “for the purpose of trade,” and thus professor was not entitled to recover under the statute. The Federal District Court has expressed “grave doubt” whether § 3A is applicable in a corporate context by a corporate plaintiff to protect a registered trademark. Pump, Inc. v. Collins Management, Inc., 746 F. Supp. 1159, 1172, 15 U.S.P.Q.2d 1716 (D. Mass. 1990); Ruggers, Inc. v. U.S., 736 F. Supp. 2d 336 (D. Mass. 2010) (noting that Massachusetts does not recognize a common law tort of misappropriation of the right to publicity).

[FN3] M.G.L.A. c. 214, § 1B, Acts of 1973, c. 941, approved October 23, 1973.

To prevent inadvertent repeal, the statute was reenacted verbatim by Acts of 1974, c. 193 effective July 1, 1974.

M.G.L.A. c. 214, § 1B proscribes only unreasonable interference with a person's privacy. See Bratt v. International Business Machines Corp., 392 Mass. 508, 467 N.E.2d 126 (1984) and Tower v. Hirschhorn, 397 Mass. 581, 492 N.E.2d 728 (1986).

See also Fox Tree v. Harte-Hanks Communications, Inc., 398 Mass. 845, 501 N.E.2d 519 (1986).

See also Elm Medical Laboratory, Inc. v. RKO General, Inc., 403 Mass. 779, 532 N.E.2d 675 (1989): “The only invasion of privacy the plaintiffs assert is ‘putting plaintiff[s] in a false light.’ This court has not recognized that tort and does not choose to do so now.” (The Court cites Fox Tree with approval.)

Whirty v. Lynch, 27 Mass.App.Ct. 498, 539 N.E.2d 1064 (1989), review denied 405 Mass. 1204, 543 N.E.2d 21 (1989) holding that a prosecutor acting within the scope of her prosecutorial duty enjoyed immunity from suit for violation of privacy brought under M.G.L.A. c. 214, § 1B.

The unannounced, warrantless, and suspicionless urinalysis testing of all police cadets does not constitute an unreasonable invasion of their privacy where cadets had consented to the testing in preemployment agreements. Police officials had a compelling interest in determining whether the cadets were using drugs and in deterring such use, and those interests outweighed the cadets' privacy interest. O'Connor v. Police Commissioner of Boston, 408 Mass. 324, 557 N.E.2d 1146 (1990).

To the same effect, see Gauthier v. Police Commissioner of Boston, 408 Mass. 335, 557 N.E.2d 1374 (1990) citing O'Connor with approval.

Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 409 Mass. 514, 567 N.E.2d 912 (1991). A security seller's representatives' telephone calls to an attorney's office three to five times a year attempting to sell securities held not to constitute a serious or substantial intrusion on the attorney's privacy rights.

Folmsbee v. Tech Tool Grinding & Supply, Inc., 417 Mass. 388, 630 N.E.2d 586 (1994). Drug test procedure held reasonable in a situation in which employee's work was dangerous and test was not unreasonably intrusive.

Webster v. Motorola, Inc., 418 Mass. 425, 637 N.E.2d 203 (1994): “To determine whether an employer's drug testing policy violates its employees' rights under [M.G.L.A. c. 214,] § 1B, we employ a balancing test: ‘[W]e balance [ ] the employee[s'] interest in privacy against the employer's competing interest in determining whether [its employees are] using drugs’.” (Quoting from Folmsbee v. Tech Tool Grinding & Supply, Inc., 417 Mass. 388, 630 N.E.2d 586 (1994).)

In Shepard's Pharmacy, Inc. v. Stop & Shop Companies, Inc., 37 Mass.App.Ct. 516, 640 N.E.2d 1112 (1994) there was found to be an invasion of the plaintiff's privacy because of the unauthorized use of the plaintiff's name and likeness but that the damages awarded were not supported by the evidence.

Ellis v. Safety Ins. Co., 41 Mass.App.Ct. 630, 672 N.E.2d 979 (1996). “To be actionable, the interference must be unreasonable and either substantial or serious.”

Physician-patient confidentiality

For action sounding in tort involving violation of the physician-patient confidentiality, see this text § 39.2 note 4.

Forms

For forms of complaints alleging violation of the right to privacy, see Rodman, 10 Massachusetts Practice Series: Procedural Forms Annotated §§ 1051 et seq. (5th ed.).

[FN4] Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 691 N.E.2d 545 (1998), a case of first impression. Kobayashi v. Orion Ventures, Inc., 42 Mass.App.Ct. 492, 678 N.E.2d 180 (1997).

[FN5] Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 400 N.E.2d 847 (1980) interpreting M.G.L.A. c. 214, § 3A.

[FN6] Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 400 N.E.2d 847 (1980) holding use of plaintiff's picture incidental. The fact that the defendant was in the business of publishing a monthly magazine for profit did not by itself transform the incidental publication into an appropriation for advertising or trade purposes.

[FN6.50] Cefalu v. Globe Newspaper Co., 8 Mass. App. Ct. 71, 391 N.E.2d 935, 5 Media L. Rep. (BNA) 1940 (1979).

[FN7] Cefalu v. Globe Newspaper Co., 8 Mass.App.Ct. 71, 391 N.E.2d 935 (1979), appeal dismissed, cert. denied 444 U.S. 1060, 100 S.Ct. 994, 62 L.Ed.2d 738 (1980), rehearing denied 445 U.S. 973, 100 S.Ct. 1669, 64 L.Ed.2d 251 (1980).

Themo v. New England Newspaper Pub. Co., 306 Mass. 54, 27 N.E.2d 753 (1940): “If the right of privacy exists in Massachusetts, it does not extend to the protection of one from having his name in a newspaper when there is a legitimate public interest in his existence, his experiences, his words or his acts.”

Compare Brauer v. Globe Newspaper Co., 351 Mass. 53, 217 N.E.2d 736 (1966): “As yet, no case has determined that there exists in this Commonwealth a legally protected right of privacy.” The decision states that facts in this case fall short of the kind of publicity which such an action “if acknowledged to exist” would have to be based.

As late as 1985, the Supreme Judicial Court was still expressing “no opinion as to whether a common law right of action for invasion of privacy exist[ed] in this Commonwealth. …” Spring v. Geriatric Authority of Holyoke, 394 Mass. 274, 475 N.E.2d 727 (1985).

“The Supreme Judicial Court has declined to determine whether there is a comparable common law claim in tort for invasion of privacy.” Transamerica Ins. Co. v. KMS Patriots, L.P., 52 Mass.App.Ct. 189, 752 N.E.2d 777 (2001).

[FN8] Wright v. R. K. O. Radio Pictures, 55 F.Supp. 639 (D.Mass.1944). Massachusetts law recognizes as an actionable invasion of privacy only such an invasion as is actionable under the broad definition of libel as a publication which discredits the plaintiff in the minds of any considerable class in the community.

See also Kelley v. Post Pub. Co., 327 Mass. 275, 98 N.E.2d 286 (1951).

[FN9] M.G.L.A. c. 214, § 1B. For similar descriptions of the meaning of privacy, see Alperin and Shubow, 14C Massachusetts Practice Series: Summary of Basic Law § 20.72 (3rd ed.); Moriearty, Adkins, Rubin and Jackson, 45 Massachusetts Practice Series: Employment Law §§ 7.1 et seq. (2nd ed.); Restatement, Second, Torts, §§ 652A et seq.

See Jones v. Taibbi, 400 Mass. 786, 512 N.E.2d 260 (1987) holding that a police record of the defendant's arrest was public information and not an invasion of privacy.

Bally v. Northeastern University, 403 Mass. 713, 532 N.E.2d 49 (1989) and citations contained therein.

Professor “Prosser discusses four types of conduct that may give rise to a claim of invasion of privacy: (1) appropriation of the plaintiff's name or likeness; (2) unreasonable intrusion upon the plaintiff's seclusion of another; (3) public disclosure of private facts about the plaintiff (even though the facts are true and no action would lie for defamation); and (4) publicity which places the plaintiff in a false light in the public eye. See W.L. Prosser & W.P. Keeton, Torts, § 117, at 851–866 (5th ed.1984). It is the third type of conduct with which the majority of our cases under G.L. c. 214, § 1B, have been concerned. * * * We have not adopted an interpretation of G.L. c. 214, § 1B, that would give rise to claim of false light invasion of privacy claim.” Ayash v. Dana–Farber Cancer Institute, 443 Mass. 367, 822 N.E.2d 667 (2005), holding that disclosures of a peer review committee involved matters of intense public interest and were not of an exceedingly personal or intimate nature and, although embarrassing, did not establish the elements required for recovery of an invasion of privacy.

False light

Liability for false light embodies giving publicity to a matter that places another before the public in a false light. “To date Massachusetts has not adopted the false light invasion of privacy tort.” Yovino v. Fish, 27 Mass.App.Ct. 442, 539 N.E.2d 548 (1989), review denied 405 Mass. 1205, 543 N.E.2d 21 (1989).

[FN10] See Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). Even before the statute, an attempt had been made to distinguish invasion of privacy from defamation, see Themo v. New England Newspaper Pub. Co., 306 Mass. 54, 27 N.E.2d 753 (1940) holding that the fundamental differences between the right to privacy and the right to freedom from defamation is that the former directly concerns one's own peace of mind, whereas the latter concerns primarily one's reputation in the community, and in the former truth does not justify an invasion of the right, while ordinarily it is a defense in actions of defamation.

For an interesting article of the right of privacy, see “Privacy Law in Massachusetts: Territorial, Informational and Decisional Rights,” by Donna E. Arzt, Massachusetts Law Review, Vol. 70, No. 4, December, 1985, p. 173.

[FN11] Bratt v. International Business Machines Corporation, 392 Mass. 508, 467 N.E.2d 126 (1984).

Public disclosure of private facts

Whether a matter is one of legitimate public concern, which cannot be the subject of an invasion of privacy action, need not always be treated as a question of fact, but rather, it is the role of the court to determine whether a jury question is presented. Peckham v. Boston Herald, Inc., 48 Mass.App.Ct. 282, 719 N.E.2d 888 (1999), holding that an article appearing in the newspaper was newsworthy and that the reporter had not obtained access to sequestered judicial paternity records in preparing the article in question, so that the evidence did not support the privacy tort claim.

[FN12] Bratt v. International Business Machines Corporation, 392 Mass. 508, 467 N.E.2d 126 (1984) applying the facts to disclosure of medical records by a physician to the employer.

Mulgrew v. City of Taunton, 410 Mass. 631, 574 N.E.2d 389 (1991) citing Bratt with approval and holding that report of chief of police to city council regarding plaintiff's fitness as a police officer did not violate the plaintiff's right of privacy.

Compare Nelson v. Salem State College, 446 Mass. 525, 845 N.E.2d 338 (2006) holding that although a college employee had an actual expectation of privacy, there was no objectively reasonable expectation of privacy in the employee's workplace for the purposes of a § 1983 Fourth Amendment privacy claim brought against the college and its public safety officers by the employee, who was videotaped by a hidden camera as she changed clothes and applied sunburn medication to her upper chest area and neck in an open area of her workplace. The space where the employee changed lacked a door and was located near stairs which visitors and employees often used to go to a restroom, and the space was not enclosed and could be entered at any time by anyone, without prior notice.

[FN13] Flynn v. Associated Press, 401 Mass. 776, 519 N.E.2d 1304 (1988).

[FN14] M.G.L.A. c. 272, § 99.

[FN15] M.G.L.A. c. 272, § 99Q.

[FN16] Pine v. Rust, 404 Mass. 411, 535 N.E.2d 1247 (1989).

[FN17] M.G.L.A. c. 272, § 99Q.

See Birbiglia v. St. Vincent Hospital, Inc., 427 Mass. 80, 692 N.E.2d 9 (1998). The charitable immunity statute does not limit the recovery of attorney fees awarded under the wiretap statute (M.G.L.A. c. 272, § 99).

[FN18] Pine v. Rust, 404 Mass. 411, 535 N.E.2d 1247 (1989).

[FN19] Howell v. Enterprise Pub. Co., LLC, 72 Mass. App. Ct. 739, 893 N.E.2d 1270 (2008), reversed as to nonprivacy-related claims, 455 Mass. 641, 920 N.E.2d 1 (2010), holding that the statutory right to privacy is circumscribed by the constitutionally protected right of others to publish matters of legitimate public concern (United States Constitution, First Amendment; M.G.L.A. c. 214, § 1B). In order to be an actionable invasion of privacy, facts disclosed about a person must be of no legitimate public concern. Since the question whether pornographic materials had been found on the official's town-owned computer was a matter of legitimate public interest, the official was precluded from bringing an action for invasion of his privacy.

Westlaw. © 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

17A MAPRAC § 43.9

END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.