ISSUES
I. Under Massachusetts’ privacy statue, did Chad Thanton disclose private information about Marsha Kensington that was unreasonable and substantial or serious, when Thanton posted three personal pictures of Kensington, which she had never made public?
II. Under Massachusetts’ defamation law, did Chad Thanton publish false information about Marsha Kensington to a third-party that could damage her reputation in the community, when Thanton made statements regarding how Kensington makes her grades, she is second in her class, and is unable to get a job offer regardless of her credentials?
BRIEF ANSWERS
I. Yes. Kensington will be able to prove that her privacy was invaded because there were pictures posted of her by Thanton that was unreasonable and substantial or serious. The pictures of Kensington posted by Thanton had no intervening legitimate interest that would make the postings reasonable. Also the interference was substantial or serious because the interference was frequent, with the pictures being posted on AutoAdmit.com and her expectation of privacy was heightened because posted the pictures under privacy settings.
II. Probably. Kensington will probably be able to prove that she was defamed because there were false statements published by Thanton to a third-party about her that could damage her reputation in the community. The comments posted on AutoAdmit.com by Thanton could damage Kensington’s reputation in the legal community because she is unable to get a job offer regardless of her credential and if read, the reader would clearly understand the implications of the statements. The statements will probably be found to be false because Thanton posted the comments with no disclaimer of opinion and without any facts backing up his contentions.
FACTS
Our client, Marsha Kensington, is making two claims against Chad Thanton for invasion of privacy and defamation for posting made on AutoAdmit.com. She is a 3L at Hightower Law School, a top ten law school, where she is second in the class and has held several prestigious clerking positions. She has had no trouble getting interviews at law firms but has yet to receive a job offer despite her above credentials. Many of these law firms are known to Google their potential employees, leading her to believe that the postings by Thanton are the reason why she has yet to receive a job offer.
Thanton posted three pictures of Kensington on AutoAdmit.com under the alias “Chad Thanton”, which is common knowledge. These pictures were found on Kensington’s Facebook.com profile but under privacy settings, never been made public, only viewable to her boyfriend and three other friends. One of the pictures is of Kensington in a seductive pose with the comment “I think it is a good thing her daddy could afford to buy her a spot into law school because everyone in class knows she’s stupid. Daddy must have bought her grades too.” Another picture is of Kensington with friends on the beach and the comment “Look at Marsha she spends more time at the beach than in the library- no wonder she copies her classmates memos!”
This memo will discuss whether Kensington will be able to make a claim for invasion of privacy and/or defamation.
DISCUSSION
I. Invasion Of Privacy
In order for Kensington to make a claim for invasion of privacy she must show that: 1) the Thanton disclosed information about her 2) that was unreasonable, and 3) caused substantial or serious interference of her right to privacy. Nelson v. Salem State College, 845 N.E.2d 338, 348 (Mass. 2005). The individual’s right to privacy is protected by Massachusetts Invasion of Privacy Statute which states the above. Mass. Gen. Laws Ann. Ch. 214 § 1B (West 2008).
A. Defendant Disclosed Information About Plaintiff
In order for invasion of privacy to be actionable there must be proof of disclosed information about the plaintiff to a third-party. Nelson, 845 N.E.2d at 348. Here Thanton posted three pictures of Kensington on AutoAdmit.com, viewable to others. So the court will find that Thanton disclosed information about the plaintiff.
B. Disclosure Is Unreasonable
The courts must also determine if the disclosure was unreasonable. Ayash v. Dana-Farber Cancer Institute, 822 N.E.2d 667, 682 (Mass. 2005). The court holds that disclosure is reasonable where there is an intervening legitimate interest. Id. Here there is no legitimate interest in the pictures of Kensington because the information is not of public interests. Thus the court will find the disclosure unreasonable.
C. Substantial Or Serious Interference
For disclosure of information to be actionable under the Massachusetts statute the disclosure must also be either a substantial or serious interference with the plaintiff’s privacy. Schlesinger v. Merrill Lynch, Peirce, Fenner & Smith, Inc., 567 N.E.2d 912, 913 (Mass. 1991). In order to determine what a substantial or serious interference is, the court will do so on a case-by-case basis. Id. at 914.
When the expectation of privacy is lessened by the actions of the plaintiff and the occurrence of interference is infrequent the interference is not substantial or serious. Id. at 916. In Schlesinger, the plaintiff sued the defendant for making calls to his office at the rate of three to five times a year in an attempt to sell securities. Id. at 912. All of these calls were received because of the plaintiff’s take all calls policy. Id. at 913. The court ruled that because the plaintiff had this call policy he lessened his expectation of privacy and because the calls were infrequent, the interference was neither substantial nor serious. Id. at 916.
The interference to the plaintiff’s privacy is not substantial or serious when there is only one photograph disclosed and the information was voluntarily sold to the defendant by the plaintiff. Albright v. Morton, 321 F. Supp.2d 130, 141 (D. Mass. 2004). In Albright, the plaintiff, a former bodyguard and lover of Madonna, sold information to the defendant about Madonna and their relationship. Id. at 133. The defendant then published a picture, that identified the plaintiff, and a quote from the plaintiff as the caption, except the picture was not of the plaintiff, but of Madonna’s openly homosexual former employee. Id. The court ruled that there was not a substantial or serious interference of the plaintiff’s privacy because he voluntarily sold the information, lessening his expectation of privacy and there was only the publication of one picture, an infrequent interference. Id. at 141.
Kensington will argue that unlike both Schlesinger and Albright, the interference into her privacy was frequent and that her actions increased her expectation of privacy. Unlike in Schlesinger, where the phone calls to his office were infrequent, only occurring three to five times a year, and unlike in Albright, where there was only the one publication of the wrongly captioned picture. Here there were three pictures posted of Kensington on AutoAdmit.com, where there is no limit to how many times the pictures will be seen, making the interference more frequent. Also unlike in Schlesinger, where the plaintiff had a take all calls policy and in Albright, where the plaintiff sold the disclosed information to the defendant, there was a lower expectation of privacy because of the parties’ actions. Here Kensington posted her pictures under privacy settings, never having them open to public domain, thus having a higher expectation of privacy.
Thanton will argue that similar to Schlesinger and Albright, the frequency of interference of Kensington’s privacy was infrequent and her expectation of privacy was decreased by her actions. As in Schlesinger, where the phone calls only occurred three to five times a year, and like in Albright, where there was only the publication of one wrongfully captioned picture, neither was a frequent interference. Here there were only three pictures posted by Thanton, which is infrequent because the disclosure is not plentiful. Then like in Schlesinger, where it was the plaintiff’s policy to take all phone calls and in Albright, where the plaintiff voluntarily sold the information to the defendant, there was a decreased expectation of privacy by their actions. Here Kensington placed her pictures on Facebook.com, which is open to public domain, and although her pictures were under privacy settings there are still ways to get around them, so her expectation of privacy was lessened by her actions.
The court will find that the information that was disclosed about the plaintiff by the defendant was a substantial or serious interference because the arguments on her side are stronger. With this ruling the court will so find that the disclosure by Thanton was an invasion of Kensington’s privacy pursuant to the Massachusetts statute.
II. Defamation
In order for Kensington to make an actionable claim for defamation she has to prove five elements. White v. Blue Cross and Blue Shield of Massachusetts, Inc., 809 N.E.2d 1034, 1036 (Mass. 2004).The elements for defamation under Massachusetts case law are: 1) there was a publication of information to a third-party, 2) the defendant is at fault for making the statement, 3) which was false 4) that was of or concerning the plaintiff, 5) which could damage the reputation of the plaintiff in the community. Id. There is also the element of damages that will be addressed by another associate.
A. Publication To A Third-Party
To make an actionable claim for defamation there must be proof of publication of a statement to a third-party. Ravnikar v. Bogjavlensky, 782 N.E.2d 508, 510 (Mass. 2003). Here Thanton posted three statements on AutoAdmit.com, where other people could see and read the comments. The court will find that this action constitutes a publication of a statement to a third-party.
B. The Defendant Is At Fault For Making The Statement
The court must also determine if the defendant was the one at fault for making the statement. Id. Here Thanton posted the statements under his alias “Thad Chinton.” Although this is not his real name, it is common knowledge that he uses this name for his AutoAdmit.com posts. The court will find that Thanton was the publisher of the statements.
C. The Statement Was False
The Massachusetts law holds that for defamation to be actionable the statements made must be false. Howell v. Enterprise Publishing Company, LLC., 893N.E.2d 1270, 1276 (Mass. App. 2008). For a statement to be found false, using the test created in Fleming v. Benzaquin, it must be determined that the statement was either a defamatory statement of fact or an opinion based on undisclosed defamatory facts (“mixed” type opinion) . See 454 N.E.2d 95, 100,103 (Mass. 1983). The statement must also be read so that it could be clearly understood by a reasonable person. Howell, 893N.E.2d at 1276-1277.
Statements that are found to be pure opinion are not actionable under Massachusetts defamation law. Fleming, 454 N.E.2d at 105. In Fleming, the plaintiff was an officer who encountered the defendant in a traffic stop. Id. at 95. In response to this encounter the defendant had a commentary on his radio show, where he gave a disclaimer stating this was his interpretation of the meeting with the plaintiff. On the broadcast he made several comments stating that he was sorry for the plaintiff’s children if he had any and that the plaintiff left them stranded. Id. at 98. The court found, using the totality of the circumstances test, that the statements made by the defendant, when taken in its total context, were pure opinion because they were based on both on non-defamatory disclosed facts and disclosed false statements of fact, which were preceded by a disclaimer, thus not being an actionable for a claim of defamation. Id. at 105.
Kensington will argue that the statements made by Thanton were unlike the statements made in Fleming because they were not pure opinion but statements of mixed opinion. Unlike in Fleming, where the comments made by the defendant, when taken into full context, were pure opinion because he was clear to disclaim the comments were based on his interpretations, here the statements of opinion were made with no disclaimer, which would lead them to be seen as undisclosed defamatory fact, because there are no known facts that back his contentions on how Kensington gets or maintains her grades, so when read the reader will assume they are facts.
Thanton will argue that like in Fleming the comments published on AutoAdmit.com were pure opinion rather than statements of mixed opinion. As in Fleming, where the statements made by the defendant were the interpretation of his experience with the plaintiff and when taken into context it was clear to be his pure opinion on disclosed the happenings of the encounter. Here, when taking the statements in their full context of AutoAdmit.com, Thanton’s statements will be seen as pure opinion because the website is known for such commentary.
The court will probably rule that the statements were false because there was no disclaimer by Thanton, claiming his statements to be opinion, so reader will assume that they are statements of fact when read. Thus the court will probably find Kensington’s argument to be stronger.
D. Of And Concerning The Plaintiff
The court must also find that the statement must be of and concerning the plaintiff. Ravnikar, 782 N.E.2d at 510. Here the allegedly defamatory statements made correspond to pictures in which Kensington is recognizable. So the court will find that the comments are of and concerning Kensington.
E. Could Damage the Plaintiff’s Reputation in the Community
In order for a claim to be actionable for defamation, the statement made must be one that could damage the plaintiff’s reputation in the community. Id. at 510. The community in which the plaintiff is injured needs not be large or substantial. Brauer v. Globe Newspaper Company, 217 N.E.2d 736, 738 (Mass. 1966). If the statement is made so that the plaintiff could be easily identified and be clearly understood by the reader, then the statement would be actionable for defamation. Brauer, 217 N.E.2d 736, 738 (Mass. 1966).
Where the plaintiff could be easily recognized in a false publication, there is enough proof to show that plaintiff’s reputation could be damaged in the community. Id. at 739. In Brauer, the plaintiff allowed the defendant to publish a picture of her son in an article about needy children and families. Id. at 738. Then two years later the defendant again published the same photograph, this time obscured, with the caption “Help for the Mentally Retarded,” making the inference that her son was mentally retarded. Her son was again recognized in this photograph by their family, friends, and former neighbors as they saw the previous publication. Id. The court ruled that even though the picture was obscured, he was identifiable, so his reputation could be damaged in the community. Id. at 738.
Kensington will argue that as in Brauer the statements made by Thanton could damage her reputation in the community. Like in Brauer, the second publication of the picture by the defendant, although the image was obscured, the plaintiff’s son was recognizable by the community and could damage his reputation because it inferred he was mentally retarded. Here the pictures posted of Kensington were not obscured in anyway, and that the comments made by Thanton were capable of damaging her reputation in the legal community which could shown her inability to receive any job offers from her prospective employers, who are known to Google prospective employees, and if they were to read the statements they would understand their implications.
Thanton will argue that unlike in Brauer the comments made about Kensington were not capable of damaging her reputation in the community. Like in Brauer, where there was another reason why the plaintiff’s son was identifiable by in the second picture published by the defendant because the plaintiffs “community” had already seen the same picture two years earlier. Here the commentary from Thanton on the pictures he posted is probably not the reason why Kensington has not yet received a job offer as there could be some undisclosed factors which caused her misfortune, like bad interview skills.
The court will find the Thanton’s statements could damage the reputation of Kensington in the community. This is because when looking at the case law her argument is more aligned with the requirements.
CONCLUSION
Based on the case law and statues discussed above Kensington will most likely be able to prevail on both of her claims. First, Kensington will be able to prove that her privacy was invaded because her argument is more aligned with the case precedence and is the harm protected by the Massachusetts statute. Secondly, the court will probably find that the statements made by Thanton were defamatory because the facts of the case and Kensington’s arguments fit more with the requirements of the case law.