Massachusetts recognizes a legal claim for publication of private facts based on Mass. Gen. Laws ch. 214, § 1B, which proscribes "unreasonable, substantial or serious interference" with one's privacy. For the most part, the law in Massachusetts is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Massachusetts law that are different from the general description.
Elements of a Private Facts Claim
In Massachusetts, a publication of private facts claim requires proof of a publication of facts of a "highly personal or intimate nature" which are "of no business of the public." In contrast to several other jurisdictions, the disclosure need not be made to the public at large and a disclosure to two people has been found sufficient to warrant relief under § 1B. Offensiveness to a reasonable person is not one of the statutory criteria under § 1B, but Massachusetts courts consider publication of private information "of no business to the public" to be "offensive." See Cefalu v. Globe Newspaper Co., 391 N.E.2d 935, 939 (Mass. App. Ct. 1979). Massachusetts courts have rejected a number of invasion of privacy claims based on conduct taking place in public locations because the facts in question were not private. See the general description for more information on the elements of a private facts claim.
Massachusetts law does not impose liability for publication of information that is of legitimate public concern or newsworthy. Peckham v. Boston Herald, Inc., 719 N.E.2d 888, 892-94 (Mass App. Ct. 1999). For example, courts applying Massachusetts law have found the following things, among others, to be of legitimate public concern (i.e., newsworthy):
- a photograph of a girl taken shorty after she died in a car accident;
- a biography of an inventor;
- passages from an autobiographical book depicting sexual relations with the author's former boyfriend, when the passages related to an examination of when undesired physical intimacy crosses the line into non-consensual sexual relations in the context of the author's unique health condition;
- a report about an applicant for a school superintendent's position who has reached an advanced point in the hiring process;
- a report about allegations of sexual harassment against the owner of a youth hostel open to the public; and
- a television network's broadcast of the plaintiff's arrest for murder.
In contrast, Massachusetts courts have found that confidential medical information is not a matter of legitimate public concern and have upheld an invasion of privacy claim based on a report publishing unsubstantiated ten-year-old investigation material about the plaintiff, a public figure.
Relying on Public Records
In Massachusetts, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Massachusetts courts have applied this protection to information obtained from court records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.
Massachusetts recognizes consent as a defense to a publication of private facts claim. Massachusetts courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Massachusetts is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s). See the general description for a more detailed discussion of release forms.
Statute of Limitations