Peckham v. Boston Herald, Inc., 97-P-1678

• Decision Date: 19 January 1999
• Docket Number: No. 97-P-1678,97-P-1678
• Citation: 48 Mass.App.Ct. 282,719 N.E.2d 888
• Parties: (Mass.App.Ct. 1999) JOHN M. PECKHAM, THIRD, v. BOSTON HERALD, INC., & another. <A HREF="#fr1-1" name="fn1-1">1 Suffolk County
• Court: Appeals Court of Massachusetts

Page 888

719 N.E.2d 888 (Mass.App.Ct. 1999)

JOHN M. PECKHAM, THIRD, v. BOSTON HERALD, INC., & another.¹ Suffolk County

No. 97-P-1678

MASSACHUSETTS COURT OF APPEALS

January 19, 1999.

November 26, 1999

Armstrong, Perretta, & Rapoza, JJ.

Newspaper. Privacy. Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on July 8, 1992.

The case was heard by Barbara J. Rouse, J., on a motion for summary judgment.

Juliane Balliro for the plaintiff.

Elizabeth A. Ritvo for the defendant.

ARMSTRONG, J.

The plaintiff, John M. Peckham, III, appeals from a judgment for the defendant newspaper, the Boston Herald (Herald), on Peckham's tort claim of public disclosure of private facts under G. L. c. 214, § 1B. The judge correctly allowed the Herald's motion for summary judgment, although we modify to some extent the rationale relied on by the judge.

The material facts of the case are not disputed. Peckham was a businessman of stature in the Boston community -- a leading realtor² and the president of at least two real estate brokerages, the Peckham Boston Advisory Company and the Investment Network of America. In 1989, Peckham received the Realtor of the Year award from the Greater Boston Real Estate Board. Besides being a business leader, Peckham was a recognized civic leader, active in "The Ten Club," a social and philanthropic organization composed of persons who, like himself, were former recipients of "The Ten Outstanding Young Leaders Award" given annually by the Greater Boston Junior Chamber of Commerce.

In early 1989, Peckham hired Louise Gendron as a real estate broker for one of his companies. The two worked in the same office and became involved in an intimate relationship. In the summer of 1989, Gendron told Peckham that she was pregnant with his child. He did not acknowledge paternity and did not reveal Gendron's announcement except to his daughter Holly and to Ronnie Botkin, a colleague and close friend. In September of 1989, sometime after Gendron had ended her relationship with Peckham, he authorized the termination of Gendron's employment.

On November 20, 1989, Gendron gave birth to a son. Peckham had not agreed to pay medical expenses or child support and insisted on genetic testing to determine the identity of the father. In the following month Gendron filed a paternity action against Peckham in the Probate and Family Court. Around that time, Peckham told his daughter Holly and Michael Pearlman, a close friend, about the existence of the paternity suit. At deposition, Botkin also testified to being aware of the paternity action.

On January 10, 1990, a columnist for the Boston Herald, Norma Nathan, contacted Mr. Franklin Levy, Gendron's attorney. Without revealing how she found out about the paternity suit, Nathan asked Levy about it. In their brief conversation, Levy confirmed the existence of the action and discussed the details of an affidavit he was preparing to file on Gendron's behalf to support the allegations of her complaint.³ On January 11, 1990, the Herald published in its daily newspaper the following story as part of Nathan's social/gossip column called "The Eye":

"Oh baby! Business and pleasure just don't mix

"Peckham's bad boy: Bulletin, bulletin, bulletin!

"Bigtime Boston real estate dealer Jack Peckham (that's John M. Peckham III) 1989 Realtor of the Year and one of the city's 1989 10 Outstanding Young Leaders, has a brand new title: Daddy.

"It's true! It's true!

"Peckham, 56, president of Peckham Boston, has been taken to court on a paternity suit. He's the father of 2-month-old John Richard Gendron, alleges Louise Gendron, who once worked for him.

"In papers filed in Suffolk Probate Court, she asks for child support, health insurance and payment of hospital and delivery costs.

"In his answer, the twice-married, twice-divorced Peckham says he doesn't know that this is his baby.

"Her lawyer -- Franklin Levy of Boston -- says Gendron was hired as a real estate broker by Jack. She lived on the 18th floor of his Charles River Park building. He lived on the 22nd. Eye say! Did they compromise and meet on the 20th? Anyway, they dated. They traveled.

"'He showed her a great time until she got pregnant,' said Levy. 'Then he fired her and refuses to acknowledge the baby.'

"The jobless Gendron says that if she doesn't have help, she'll go on welfare. She's caring for the baby with help from her family.

"His lawyer is Paul Kane of Boston, bigtime divorce lawyer.

"'No comment,' says Kane. Honestly, no one tells a gossip anything!" In May of 1990, after receiving the results of genetic testing done in connection with the paternity suit, Peckham acknowledged that he fathered Gendron's son and has since not concealed that fact.

In July, 1992, Peckham filed suit against Levy and Gendron, and in September, 1994, amended his complaint to add a claim against the Herald,⁴ for the public disclosure of private facts under G. L. c. 214, § 1B.⁵ The Superior Court granted the Herald's June, 1997, motion for summary judgment on the basis that Peckham's revelation of the existence and details of the paternity action to his daughter, Pearlman, and Botkin left these facts no longer private.

The Massachusetts appellate courts have had no occasion to consider the extent to which one forfeits the privacy of personal facts by discussing them with one's close friends and family. Reported cases have dealt primarily with broad-based disclosures, whereby information that is a matter of public record or is otherwise made open to the public view is generally deemed no longer private. See Jones v. Taibbi, 400 Mass. 786, 801 (1987); Globe Newspaper Co. v. Police Commr. of Boston, 419 Mass. 852, 860 (1995), citing Restatement (Second) of Torts § 652D, at 385 (1977); Cefalu v. Globe Newspaper Co., 8 Mass. App. Ct. 71, 77 (1979), appeal dismissed and cert. denied, 444 U.S. 1060 (1980). Perhaps most germane to the present case is this observation from Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 409 Mass. 514, 521 (1991): "[A] person may relinquish a privacy right by engaging in certain activities, or by placing himself in certain contexts where his legitimate expectation of privacy is reduced." Where one discusses sensitive personal matters with a close relative or trusted friend, one can often legitimately expect that these matters will remain confidential. See Restatement (Second) of Torts § 652D comment b, at 386 (1977) ("Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends"). It is not unreasonable to argue that it should be deemed a factual question whether a given person, due to the particular circumstances and manner of disclosure, has relinquished an expectation of privacy. On this record, which provides no detail about the place, manner, and confidentiality of the discussions between Peckham and the others, viewed in the light most favorable to him, there may thus be a genuine issue of material fact whether Peckham compromised his privacy simply by discussing the paternity suit with his daughter and two close friends. That issue we need not and do not resolve.

The Herald argues, as it did below, that even if the above information were private, its public disclosure was not actionable because, as a matter of common law and the First Amendment, the information was a matter of "legitimate public concern" that could not be the subject of an invasion of privacy action.⁶ See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985); Hastings & Sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812, 818 (1978); Jones v. Taibbi, 400 Mass. at 801; Restatement (Second) of Torts § 652D & comment d (1977). See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975); Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979); The Florida Star v. B.J.F., 491 U.S. 524, 533 (1989). Although the boundaries of "legitimate public concern" have not been comprehensively explored in the Massachusetts case law, the Restatement (Second) of Torts provides the following relevant discussion in comments g and h to § 652D, at 390-391:

"g. News. Included within the scope of legitimate public concern are matters of the kind customarily regarded as 'news.' To a considerable extent, in accordance with the mores of the community, the publishers and broadcasters have themselves defined the term,⁷ as a glance at any morning paper will confirm. Authorized publicity includes publications concerning homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve-year-old girl, the reappearance of one supposed to have been murdered years ago, a report to the police concerning the escape of a wild animal and many other similar matters of genuine, even if more or less deplorable, popular appeal."

"h. Private facts. . . . The extent of the authority to make public private facts is not, however, unlimited. There may be some intimate details of her life, such as sexual relations, which even [a famous] actress is entitled to keep to herself. In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern. . . ." See Prosser & Keeton, Torts § 117, at 860-861 (5th ed. 1984)....