1. MEMORANDUM
TO: Artemis Dubois, Esq.
FROM: Code Number 477
DATE: November 23, 2015
RE: Margaret Reynolds – Potential Claim for Invasion of Privacy - Massachusetts
Law
Issue
Whether, under Massachusetts law, a law student has a viable invasion of privacy claim
under the Massachusetts Privacy Act against a classmate, who is not her “friend” on Facebook,
who allegedly posted undoctored photographs from her Facebook account that were not to be
viewed by the public generally on www.AutoAdmit.com with allegedly false comments.
Conclusion
No. Under Massachusetts law, a law student does not have a viable invasion of privacy
claim against a classmate, who is not her “friend” on Facebook, who allegedly posted undoctored
photographs from her Facebook account that were not to be viewed by the public generally on
www.AutoAdmit.com with allegedly false comments. To have a viable action for invasion of
privacy under the Massachusetts Privacy Act, an individual must show (1) that the information is
private, (2) that the defendant’s act constitutes “gathering and dissemination” of private
information, and (3) that the defendant’s conduct was unreasonable. Here, the plaintiff’s
photographs do not contain private information. Consequentially, the defendant’s conduct was
not unreasonable. Therefore, the law student does not have a viable claim for invasion of
privacy.
Facts

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Our client, Margaret Reynolds, has asked us to determine whether she has a viable
invasion of privacy claim against Ryan McPoyle under Massachusetts law. Ms. Reynolds and
Mr. McPoyle are classmates at Flipadelphia Law School in Boston, Massachusetts. Flipadelphia
Law School is ranked among the top ten law schools in the country, and Ms. Reynolds, who is in
her third year, is ranked second in her law school class. Ms. Reynolds held several prestigious
clerking and externship positions and had no trouble getting interviews with firms for associate
positions, but none of the firms have made her an offer for employment after graduation. Mr.
McPoyle posted three comments and photographs on www.AutoAdmit.com, “the most
prestigious law school discussion board in the world,” under the username “DAYMAN.” The
three photographs Mr. McPoyle posted were originally posted on Ms. Reynolds’s own Facebook
page, but Ms. Reynolds only allowed her boyfriend and three other close friends, who were her
Facebook “friends,” access to the photographs. Ms. Reynolds never posts photographs so that
they can be viewed by the public generally.
Mr. McPoyle did not alter the actual photographs in any way, although the comments
accompanying them, Ms. Reynolds says, are false. The first photograph was of Ms. Reynolds in
a t-shirt and shorts smiling with two young men wearing Delta Omega Lambda fraternity shirts
and holding beers. There was a third fraternity member with his hand over Ms. Reynolds’s
shoulder to which Mr. McPoyle commented, “Here’s our Margaret just after she made these frat
boyz happy. How do I get invited to one of these parties?” The second photograph is of Ms.
Reynolds alone wearing a bikini in a seductive pose. Mr. McPoyle’s comment accompanied
with this photograph said, “Good thing her daddy could afford to buy her a good-looking body
and buy her a spot in law school because everyone in her class knows she doesn’t have what it
takes. Daddy must have bought her some grades, too.” The third photograph that Mr. McPoyle

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posted on www.AutoAdmit.com displayed our client with four other girls on a beach wearing
bikinis and holding drinks with tiny umbrellas and pineapples in them. The girls were smiling
with their arms over one another’s shoulders. Mr. McPoyle’s comment for the third photograph
stated, “Margaret is available, if you know what I mean, but I don’t know about these other
babes. Do you?”
Ms. Reynolds’s classmates mentioned that the law firms that interviewed them always
“google” candidates, and the Flipadelphia Law School Career Services Office confirmed that it is
common practice by law firms to google the candidates they interview. She believes that
potential employers “googled” her and found Mr. McPoyle’s posts. Because she was discussed
in disparaging ways on www.AutoAdmit.com, Ms. Reynolds believes that she has been unable
to obtain a job offer. Our client now wants to know if she has a viable invasion of privacy claim
against Mr. McPoyle.
Discussion
Margaret Reynolds does not have a viable invasion of privacy claim under the
Massachusetts Privacy Act against classmate Ryan McPoyle, who is not her “friend” on
Facebook, who allegedly posted undoctored photographs from her Facebook account that were
not to be viewed by the public generally on www.AutoAdmit.com with allegedly false
comments. Under the Massachusetts Privacy Act, “[a] person shall have a right against
unreasonable, substantial or serious interference with his privacy.” MASS. GEN. LAWSANN. ch.
214, § 1B (West 2015). An invasion of privacy claim will fail if it involves “(1) no ‘private’
facts of any sort; (2) no acts constituting ‘gathering and dissemination’ by defendants; and (3) no
unreasonable conduct on defendants’ part.” Dasey v. Anderson, 304 F.3d 148, 155 (1st Cir.
2002).

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In this incident, the information portrayed in the photographs was not private because it
was not of a “highly personal or intimate” nature. French v. United Parcel Serv., 2 F. Supp. 2d
128, 130 (D. Mass 1998). Furthermore, other individuals knew about the photographs and had
access to them since they were already “in the public domain.” Brown v. Hearst Corp., 862 F.
Supp. 622, 631 (D. Mass 1994). The second element, gathering and dissemination of private
information, is not met because the gathered and disseminated photographs do not contain any
private information. Thus, Mr. McPoyle’s conduct was reasonable because the gathering and
dissemination was not done to private information. Consequentially, under Massachusetts law,
Ms. Reynolds does not have a viable claim for invasion of privacy because, although she did not
intend for the photographs to be viewed by the public generally, the photographs posted by Mr.
McPoyle on www.AutoAdmit.com still do not contain information that is private.
Private Information
Although Ms. Reynolds’s photographs were not posted on Facebook for the public
generally, the information contained in them is not private because several other individuals
knew about the photographs and had access to them. To fulfill the first element of a prima facie
case for invasion of privacy, private information must exist that is “highly personal or intimate”
about the plaintiff. French, 2 F. Supp. 2d at 130. “For purposes of the Massachusetts Privacy
Act, ‘private’ facts are not necessarily simply those that are ‘not public,’ that is, not generally or
widely known.” Id. at 131. Additionally, information is not private if it is already “in the public
domain.” Brown, 862 F. Supp. 622 at 631. The statute does not give, “a right to prohibit . . . any
one else who was present . . . from voluntarily disclosing what he had personally observed or
done in connection with the incident.” French, 2 F. Supp. 2d at 131. The information must be
considered private by the plaintiff, but it is not private when others observed the event, or are

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aware of the information, and thus are free to disclose it if there is no relationship which requires
their confidentiality on the manner. Id.
“To fall under the protection of the Massachusetts privacy statute, disclosed facts must be
‘of a highly personal or intimate nature’ . . . Moreover, there can be no invasion of privacy where
facts, though highly personal, are already in the public domain.” Wagner v. City of Holyoke,
241 F. Supp. 2d 78, 100 (D. Mass 2003). In Wagner, the defendant publicly distributed the
plaintiff’s psychiatric evaluation, which was “obviously personal in nature . . . to officers who
were not Wagner’s supervisor’s.” Id. The plaintiff’s psychiatric evaluation was private
information that was not “already in the public domain.” Id. By disseminating that information,
the court concluded that the defendant could reasonably be found by a jury to have violated the
privacy statute. Id.
French expanded upon the notion that private information must be “highly personal or
intimate.” 2 F. Supp. 2d at 130. In that case, the plaintiff brought an invasion of privacy claim
against his employer for disciplinary actions following an incident involving another employee’s
self-inflicted injury due to intoxication at the plaintiff’s home. Id. The plaintiff reported the
incident and was consequentially put on leave and later demoted. Id. This incident, which the
plaintiff claimed was private under the Massachusetts Privacy Act, not only pertained to private
information that was not about the plaintiff but also involved an incident that other individuals
were present for and thus, who could have also voluntarily disclosed this same information. Id.
Because several other employees were present during this incident at the plaintiff’s home, the
information was no longer private. Id. In order for information to be “highly personal or
intimate” to satisfy the first element of an invasion of privacy claim, other individuals cannot
have access to the information. Id.

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Although the French case is subtly distinguishable from Ms. Reyonold’s potential claim
because the plaintiff in French directly disclosed the information, the principle remains the same
that simply because information is “not public” or not “widely known” does not mean that it is
private. Id. Here, although Ms. Reynolds did not post the photographs to be viewed by the
public generally, that does not necessarily mean that they contained private information. Similar
to the incident in French, the photographs were not solely about Ms. Reynolds. Other
individuals were not only present at the times that the photographs were taken and in the
photographs, but were also allowed access to the photographs on Ms. Reynolds’s Facebook page.
Furthermore, there was no relationship between Mr. McPoyle and Ms. Reynolds that restricted
him, or any of Ms. Reynolds’s Facebook “friends” with direct access to the photographs, from
disclosing the photographs on other websites. Thus, despite not being posted for the public, the
photographs do not contain private information because they are not “highly personal or
intimate” because they were already posted “in a public domain” that allowed other individuals
access to the photographs.
Gathering and Dissemination
Ms. Reynolds’s photographs do not violate the Massachusetts Privacy Act because the
photographs that were gathered and disseminated do not contain private information. As
examined in Schlesinger, “The bulk of Massachusetts cases under [this] statute have concerned
the gathering and dissemination of information which the plaintiffs contended was private.”
Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, 567 N.E.2d 912, 914 n.4 (Mass. 1991).
Thus, to fulfill the second element for a prima facie invasion of privacy case, the information
must not only be gathered and disseminated by the defendant, but must also be private. Dasey,
304 F.3d at 154.

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To have a viable claim, the plaintiff must prove that the defendant gathered and
disseminated private information. In Dasey, the plaintiff’s complaint failed as a matter of law
because it did not identify “any facts at all, and certainly no highly personal or intimate facts,
about Dasey that were either gathered or disseminated by any defendant.” Id. In that case, the
defendant watched a videotape, seized by a non-party state trooper, of the plaintiff smoking
marijuana. Id. The court held that merely watching a video of the plaintiff does not satisfy the
“gathering and disseminating” element of an invasion of privacy claim under the Massachusetts
Privacy Act. Id. Ultimately, however, there was no invasion of privacy claim because the
plaintiff “failed to allege that [the] defendants disclosed any facts that would qualify as
‘private.’” Id. at 153.
Although the claim in Dasey is distinguishable from Ms. Reynolds’s claim because she
wants to bring suit against the person who allegedly directly gathered and disseminated the
information, as opposed to the individuals who merely viewed the photographs on
www.AutoAdmit.com, the information gathered and disseminated still must be private. Because
Mr. McPoyle often bragged about his posts on www.AutoAdmit.com under the username
“DAYMAN,” it is highly likely that he was the actual individual to post most of the photographs
on “the most prestigious law school discussion board in the world.” Yet, despite Mr. McPoyle
gathering and disseminating the photographs that Ms. Reynolds did not want to be viewed by the
public generally, they were still not gathered and disseminated in violation of the Massachusetts
Privacy Act because the statute requires that photographs contain private information.
Unreasonable Conduct
Mr. McPoyle’s conduct was reasonable because the information in the photographs was
not private. Under Massachusetts law, “to be actionable, the gathering and dissemination of

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private facts must also be unreasonable.” Dasey, 304 F.3d at 154. A balancing test must be used
to determine whether the conduct was unreasonable which “has interpreted § 1B [Massachusetts
Privacy Act] to proscribe the required disclosure of facts about an individual that are of a highly
personal or intimate nature when there exists no legitimate, countervailing interest.” Bratt v.
Int’l. Bus. Machs. Corp., 467 N.E.2d 126, 133 (Mass. 1984). The defendant’s conduct must be
compared with the plaintiff’s “legitimate, countervailing interest” to keep the information
private. Id. at 134.
The Massachusetts Privacy Act was framed “in broad terms so that the courts can
develop the law thereunder on a case-by-case basis, by balancing relevant factors . . . and by
considering prevailing societal values.” Schlesinger, 567 N.E.2d at 914. The statute does not
use “the adjectives ‘unreasonable,’ ‘substantial,’ and ‘serious’ . . . [to] set forth three standards.”
Id. Rather, privacy extends to interferences which must be unreasonable as well as either
substantial or serious. Id. “The statute obviously was not intended to prohibit serious or
substantial interferences which are reasonable . . . [and] it is highly unlikely that the Legislature
intended to provide a right of action to a person whose privacy was substantially or seriously
interfered with, but reasonably so.” Id.
Although the defendant’s interferences may be substantial or serious, if the conduct is not
also unreasonable then the plaintiff likely does not have a viable claim under Massachusetts law.
In Schlesinger, “the defendant's representatives called the plaintiff only three to five times per
year . . . The calls were brief in duration, had a legitimate business purpose, and did not disrupt
the plaintiff's daily routine or the conduct of his law practice.” 567 N.E.2d at 915. This unique
set of facts had not yet been addressed by the court as an invasion of privacy claim. Id. at 914.
Because the Massachusetts Privacy Act was designed to be interpreted “on a case-by-case basis,

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by balancing relevant factors . . . and by considering prevailing societal values,” the court
decided that this conduct was not unreasonable because “telephone solicitations are an often
unpleasant fact of modern life that must be faced by anyone who has a telephone and permits
their telephone number to be listed in directories accessible to the general public.” Id. at 915.
Additionally, by considering societal views, the court determined that “some uninvited outside
contacts are to be expected, and not every intrusion will constitute a legally cognizable violation
of privacy.” Id.
The balancing test determines whether the defendant’s conduct is reasonable. The
plaintiff in Bratt was diagnosed with paranoia, causing the court to “conclude that the disclosure
of private facts about an employee among other employees in the same corporation” can be an
invasion of privacy. Bratt, 467 N.E.2d at 134. The balancing test used in Bratt considered “[an]
employer’s interest in medical information balanced against employee’s privacy right and
interest in confidentiality of medical data.” Id. at 136. By using this balancing test, the court
determined the defendant’s conduct in gathering and disseminating the private information was
unreasonable due to the “patient’s valid interest in preserving the confidentiality of medical
facts.” Id.
Because the balancing test considers “legitimate, countervailing interest[s],” Ms.
Reynolds’s interest to not have the photographs viewed by the public generally must be weighed
against Mr. McPoyle’s conduct of posting the comments and photographs on
www.AutoAdmit.com. Id. at 133. Ms. Reynolds’s interest in keeping the photographs private is
not legitimate because the information in her photographs simply is not private. As in
Schlesinger, Ms. Reynolds’s claim is the first of its kind. As such, it must be determined on a
“case-by-case basis.” The court must consider societal views when determining whether Mr.

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McPoyle’s conduct was unreasonable. In this modern era, it is difficult to find his conduct
unreasonable when the photographs were already personally posted on the internet by Ms.
Reynolds. Although this claim is distinguishable from Schlesinger because Ms. Reynolds’s
photographs were not published for the general public, the photographs were nevertheless
already published on the internet. Even if Mr. McPoyle’s interference was substantial or serious,
“it is highly unlikely that the Legislature intended to provide a right of action to a person whose
privacy was substantially or seriously interfered with, but reasonably so.” Schlesinger, 567
N.E.2d at 914. Because the information in the photographs was not private, Mr. McPoyle’s
conduct was reasonable and Ms. Reynolds does not have a viable invasion of privacy claim.
Recommendation
Although Ms. Reynolds may not be able to state a viable invasion of privacy claim, she
may be able to state a viable defamation claim. “To succeed on a defamation claim under
Massachusetts law, a plaintiff must show that the defendant was at fault for the publication of a
false statement of and concerning the plaintiff which was capable of damaging his or her
reputation in the community and which either caused economic loss or is actionable without
proof of economic loss.” Stanton v. Metro Corp., 438 F.3d 119, 123 (1st Cir. 2006). In Stanton,
a high school student had a viable defamation claim when the defendant published the plaintiff’s
“photograph alongside an article entitled ‘The Mating Habits of the Suburban High School
Teenager.’” Id. at 122. The plaintiff alleged that “the juxtaposition of [her] photograph with the
text… has a reasonable tendency to injure [her] reputation and did so injure [her] reputation.” Id.
at 132. Like in Stanton, if Ms. Reynolds is able to show that Mr. McPoyle’s conduct had a
reasonable propensity and actually did injure her reputation, then she may have a viable
defamation claim.