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What types of invasion of privacy claims are available in Massachusetts?

An invasion of privacy tort is a tort claim that a plaintiff can bring against a defendant in the Commonwealth. Specifically, the courts have defined an invasion of privacy as “the wrongful intrusion into one's private activities in such a manner as to outrage or to cause mental suffering, shame or humiliation to a person of ordinary sensibilities.”[1] In the age of social media, texting, and “sliding into someone’s DM”, invasion of privacy cases have become more and more common in tort law.

There are four types of invasion of privacy claims recognized in Massachusetts: (1) intrusion of a person's physical solitude or seclusion; (2) public disclosure of private facts about a person; (3) placing a person in a false light in the public; and (4) appropriation of a person's name or likeness for commercial purposes.[2] In the Commonwealth, this right is controlled by a statute which states that “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.”[3]

Additionally, the Commonwealth has a statute for the unauthorized use of a person’s likeness, which states that “[a]ny person whose name, portrait or picture is used within the Commonwealth for advertising purposes or for the purposes of trade without his written consent … may recover damages for any injuries sustained by reason of such use.”[4]

The first claim, intrusion of a person's physical solitude or seclusion, must have the following elements: (1) an intentional intrusion; (2) upon the seclusion, solitude or private affairs of another; (3) which would be highly offensive to a reasonable person.[5] Specifically, interference with the plaintiff's seclusion or intrusion into “must be substantial and of a kind that would be highly offensive and objectionable to the ordinary reasonable man.”[6]

The second claim, the public disclosure of private facts about a person is at the heart of this tort. In these circumstances, private information regarding an individual is published to a public forum where large groups of people can consume this private information. The elements of the tort are: (1) there must be a public disclosure; (2) the facts disclosed must be private facts, rather than public ones; (3) the matter made public must be one which would be offensive and objectionable to a reasonable person of ordinary sensibilities; and (4) the facts publicized must be of no legitimate concern of the public.[7] Like the intrusion of a person’s physical solitude, this claim states that a reasonable person must find this disclosure “highly offensive or highly objectionable.”[8]

As many of these issues have surrounded media reports, Massachusetts has developed some interesting case law for this claim. In Kelley v. Post Pub. Co., the Court held that while private and disturbing, the media release of a story and photograph regarding a 15-year-old girl who died in a car accident were not an invasion of her privacy.[9] Rather, the young girl became a legitimate figure of public interest.[10]

The third claim, placing a person in a false light, has an interesting history in the Commonwealth. While this claim is recognized in Massachusetts, the Court has not adopted an interpretation of the statute that would give rise to claim of false light invasion of privacy claim.”[11]

The final claim, appropriation of a person's name or likeness for commercial purposes, is a common invasion of privacy tort claim. The tort claim became relevant as it was to protect others from profiting from an individual’s name, likeness or reputation in the community. The elements of this claim are: (1) the use of the plaintiff's name or likeness; (2) the appropriation of the plaintiff's name or likeness to the defendant's own purposes or benefit, commercially or otherwise; (3) lack of consent by the plaintiff; and (4) damages caused to the plaintiff by the defendant.[12] Generally, a claim for this tort is brought when someone’s name or likeness is used without their consent for advertising or branding.

If you need more information about the Massachusetts invasion of privacy statute and tort claims, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.


[1]

[2] See Restatement, 2d, Torts, §§ 652A, 652D.

[3] M.G.L.A. c. 214, § 1B.

[4] M.G.L.A. c. 214, § 3A.

[5] Restatement, 2d, Torts, § 652B.

[6] Id.

[7] See note 2.

[8] Id.

[9] 98 N.E.2d 286 (1951).

[10] Id.

[11] Ayash v. Dana–Farber Cancer Institute, 822 N.E.2d 667 (2005),

[12] See note 2.

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