The United States Court of Appeals for the First Circuit has certified to us seven questions as to Massachusetts law raised by libel and invasion of privacy claims brought by
The defendants moved in Federal court for summary judgment on all counts of Bratt's amended complaint. In November, 1982, a judge of the United States District Court for the District of Massachusetts granted the motions for summary judgment, and Bratt appealed.
We conclude as follows with respect to the libel law questions. For a defendant in a libel case to lose a conditional privilege to publish defamatory material by "unnecessary, unreasonable or excessive publication," Galvin v. New York, N.H. & H.R.R., 341 Mass. 293, 297-298 (1960), the plaintiff must prove that the defendant published the defamatory information recklessly. An employer has a conditional privilege to disclose defamatory information concerning an employee when the publication is reasonably necessary to serve the employer's legitimate interest in the fitness of an employee to perform his or her job. A conditional privilege may be lost by abuse; the same standard for abuse through excessive publication applies when the defamatory material is medical information.
We also conclude, concerning the invasion of privacy claim under G.L.c. 214, § 1B, that the disclosure of private facts
We summarize the facts as they have been presented to us in the certification memorandum of the Court of Appeals. Bratt has been an employee of IBM since 1970 and is presently employed by the company. Bratt experienced several problems in his employment during the years 1971 through 1978. To seek resolution of these difficulties, Bratt utilized IBM's "open door policy," an internal grievance procedure which enables employees to confront higher management with their complaints should their immediate supervisors fail to resolve the problems.
Bratt used the open door procedure approximately four times from 1971 through 1978, to complain of not receiving promotions and salary raises that were promised him or that he believed he deserved. Bratt also utilized the open door procedure
Bratt again utilized the open door procedure when he discovered that copies of suggestions that he had made for improving certain internal company practices were missing from his files. Bratt was informed that such suggestions had not been implemented. He was troubled that these proposals, as well as his work in general, were not appreciated. Bratt again confronted Liebtag, who told Bratt that any suggestions that he made were part of his job, and he should not be seeking personal recognition for such proposals.
After the unsuccessful meeting with Liebtag, Bratt told his supervisor that he was suffering from "bad nerves," headaches, and an inability to sleep. At the supervisor's suggestion, Bratt consulted with the defendant Dr. Nugent, a general practitioner retained by IBM. Following a routine physical examination, Dr. Nugent called Bratt's supervisor and expressed her opinion that Bratt was paranoid and should see a psychiatrist immediately. Bratt's supervisor relayed this information to her supervisor who, in turn, disclosed this to Liebtag. Liebtag made a memorandum for his file, summarizing the conversation.
Subsequently, Bratt's latest open door grievance was denied. Bratt was so informed. One of his supervisors then called Liebtag to relay Bratt's reaction. Liebtag summarized this conversation with the supervisor and his own impressions of Bratt's behavior in a memorandum which he forwarded to two IBM managerial supervisors. The memorandum stated that Bratt went into his supervisor's office with the letter denying his latest grievance. The supervisor observed that Bratt was distraught and crying. The supervisor made an appointment for Bratt with a psychiatrist. Liebtag wrote that this latest episode indicated that Bratt appeared to have a mental problem that went beyond IBM. He concluded that the corporate medical
Although Liebtag averred in his affidavit that only two managerial supervisors received copies of this memorandum, Bratt contends that approximately sixteen people within IBM learned about his condition. Bratt also disputes the accuracy of his diagnosis as paranoid.
The manager's manual used by IBM provides, in relevant part, that "[p]rior approval of the employee ... will be obtained before either disclosing or seeking confidential medical information, except in an emergency or where such disclosure is required by law." The manual also provides that confidential medical information will not be provided to "managers or Personnel" without an employee's prior consent.
Bratt's libel claim is based on Liebtag's distribution of the memoranda that he made concerning Bratt's mental condition. Bratt's claim for invasion of privacy under G.L.c. 214, § 1B, is premised on two grounds. First, that IBM violated Bratt's right of privacy by disclosing information about his use of the open door policy to personnel who should not have received this information. Second, that there was an improper disclosure of Dr. Nugent's description of Bratt as paranoid.
1. Libel claim. a. Questions 1 and 2
In Galvin v. New York, N.H. & H.R.R., supra, we recognized that an employer has a conditional privilege to use defamatory language to ascertain the identity of a person who allegedly stole goods from the business. We decided, however, that loud and repeated public accusations concerning the plaintiff constituted an abuse of the conditional privilege "by an unnecessary, unreasonable or excessive publication of the defamatory matter." Proof of "actual malice" was not a prerequisite to loss of the privilege. Id. at 297, 298.
We did not specifically state in the Galvin case whether negligence or recklessness was the threshold standard for determining whether a conditional privilege was lost by publication of defamatory matter. However, our description of the misconduct in Galvin as unreasonable or excessive, as well as something less than "actual malice," appears to favor recklessness or "malice in fact" as the standard. See also Doane v. Grew, 220 Mass. 171, 176 (1915) (conditional privilege in defamation action lost by proof of "malice in fact"; proof of "malice in fact" can be made in a number of ways).
Our cases have recognized that a conditional privilege may be abused, and lost, in a number of ways. See Restatement (Second) of Torts § 599 comment a, at 286 (1977). In Tosti v. Ayik, 386 Mass. 721, 726 (1982), we stated: "One manner of such abuse is publication with knowledge of falsity or with reckless disregard of the truth."
We therefore conclude that loss of a defendant's conditional privilege in a defamation action through "unnecessary, unreasonable or excessive publication" requires proof that the
b. Question 3
Thus, our answer to question 3 is, "Yes."
2. Breach of privacy claim. a. Question 1
Although we have never decided directly whether an intracorporate communication amounts to a sufficient publication under § 1B, our dicta in privacy cases and our decision on this issue in a libel case prove instructive. In Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 348 (1943), we decided that a defamatory communication between agents of the same corporation, with reference to some aspect of corporate business, constitutes a publication for purposes of maintaining a libel action. Accord Arsenault v. Allegheny Airlines, Inc., 485 F.Supp. 1373, 1379 (D. Mass.), aff'd, 636 F.2d 1199 (1st Cir.1980), cert. denied, 454 U.S. 821 (1981). Cf. Riceman v. Union Indem. Co., 278 Mass. 149, 151-152 (1932) (defendant surety company's transmittal of defamatory material in letter sent to different division of company sufficient to sustain allegation of publication). In Cort v. Bristol-Myers Co., supra, we indicated that to require intracorporate disclosure from employees of unreasonably intrusive, personal information in response to an employer's questionnaire would constitute a violation of the principles of G.L.c. 214, § 1B. Id. at 306-307, 308 n. 9. Although no § 1B action could be maintained in the Cort case because questions asked were not inappropriate, and, possibly because the employees refused to answer, or gave
We conclude that the disclosure of private facts about an employee among other employees in the same corporation can constitute sufficient publication under the Massachusetts right of privacy statute.
Thus, we answer question 1, "Yes."
b. Questions 2 and 3
We acknowledged in Cort, however, that "in the area of private employment there may be inquiries of a personal nature that are unreasonably intrusive and no business of the employer and that an employee may not be discharged with impunity for failure to answer such requests."
In response to question 2, we conclude that no conditional privilege for legitimate business communications exists under the Massachusetts right of privacy statute. However, an employer's obtaining and disclosing of personal information concerning an employee may not amount to an unreasonable interference with the employee's right of privacy in violation of § 1B. In determining whether there is a violation of § 1B, it is necessary to balance the employer's legitimate business interest in obtaining and publishing the information against the substantiality of the intrusion on the employee's privacy resulting from the disclosure.
Therefore, we answer question 2, "No," with qualifications. Based on our answer to question 2, we decline to answer question 3.
c. Question 4
We recognize a patient's valid interest in preserving the confidentiality of medical facts relayed to a physician.
In determining whether an employee's privacy right under § 1B is violated by his physician's disclosure of personal medical data to his employer, we would consider the degree of intrusion on privacy and the public interest in preserving the confidentiality of a physician-patient relationship balanced against the employer's need for the medical information. See, e.g., Hague v. Williams, supra (where patient's physical condition
Bratt contends that a conditional privilege may be lost through "unnecessary, unreasonable or excessive publication," on a showing that the defendants negligently published the information. The defendants claim that the privilege can be defeated only by a showing of at least recklessness in publishing the material.
The Restatement also appears to sanction a scienter prerequisite to finding an "excessive publication" which abuses the conditional privilege. See Restatement (Second) of Torts § 604, supra at 292. Section 604 states that one who "knowingly publishes the [defamatory] matter to a person to whom its publication is not otherwise privileged, abuses the privilege unless he reasonably believes that the publication is a proper means of communicating" the matter to a privileged person. Id. Comment b of § 604 states that excessive publication does not occur merely by an incidental publication of the information to unprivileged persons unless the communication is "unnecessary and unsanctioned by a custom based on ordinary necessities of business." Id. at 293. See also New York & P.R.S.S. Co. v. Garcia, 16 F.2d 734, 738-739 (1st Cir.1926) (conditional privilege not lost although third persons overheard communication, provided their presence occurred in usual course of business affairs).
Bratt asserts that a negligence standard should apply to defamatory medical information disclosed by an employer. He claims that Liebtag, in disseminating the information concerning Bratt's medical condition, acted unreasonably and in contravention of express IBM policy, and thus abused his conditional privilege. The defendants maintain that the same standard for abuse of the conditional privilege should apply when the defamatory material is medical information.
We agree with this reasoning as well as with the important distinction made by the Hoesl court for medical opinions which conclude that an individual is mentally ill. "[I]n a case involving the unambiguous and considered publication to an employer that an employee has a specified mental disorder [which]... make[s] him unfit for his job," the court would "hold the publication defamatory on its face." Hoesl, supra at 1173.
Bratt claims that the disclosure of confidential medical information to managerial employees of IBM amounts to an unreasonable interference with his right of privacy, in violation of G.L.c. 214, § 1B. The defendants contend that the dissemination of Bratt's medical condition among only a few IBM employees does not constitute a sufficient disclosure to make out a prima facie claim under G.L.c. 214, § 1B. See note 15, infra.
We note that the assumption of the question, and of the arguments, is that publication is an essential ingredient of the tort of invasion of privacy. While this may not be true in every instance (see, e.g., Cort v. Bristol-Myers Co., 385 Mass. 300, 307 & n. 9 ; Themo v. New England Newspaper Publishing Co., 306 Mass. 54, 57 , and cases cited), we answer the question in the context stated.
Because G.L.c. 214, § 1B, focuses on interference with a person's privacy right, and our case law speaks of the disclosure of intrusive, personal facts as sufficient to constitute a violation of the statute, we depart somewhat from the Restatement's concept of the tort. See Cort v. Bristol-Myers Co., supra at 302-303; G.L.c. 214, § 1B. We thus reject the defendants' contention that communication of personal facts concerning Bratt only among employees of IBM would be an insufficient disclosure under § 1B.
Bratt contends that conditional privileges for an employer's legitimate business communications should be evaluated by balancing the employer's need to obtain the personal information against the employees' privacy rights. The defendants claim that a conditional privilege should exist for valid business communications. The defendants further contend, however, that we should follow case law from other jurisdictions which holds that where publicity of private facts is privileged in a defamation action, there is no actionable invasion of privacy.
Courts in other jurisdictions also have decided that the disclosure of personal information, in certain situations, serves a legitimate business interest which outweighs a plaintiff's privacy right. See, e.g., Harrison v. Humble Oil & Refining Co., 264 F.Supp. 89, 92 (D.S.C. 1967) (creditor may disclose the existence of an outstanding debt to the debtor's employer; this reasonable method of persuading payment does not constitute an actionable intrusion on the debtor's privacy); Yoder v. Smith, 253 Iowa 505, 510 (1962) (same); Household Fin. Corp. v. Bridge, 252 Md. 531, 543-544 (1968) (same).
The question, as phrased, presupposes that we answered affirmatively questions 2 and 3 regarding the existence of a conditional privilege for business communications in an action under G.L.c. 214, § 1B. Although we conclude that no such conditional privilege exists under Massachusetts law, our concern with balancing an employer's right to disclose personal data about an employee with the employee's privacy rights applies with equal force when an employer discloses medical information about an employee. We thus include the following explanation of the balancing approach we would apply in such a factual situation.
The defendants claim that we should apply the same conditional privilege and standard for abuse with respect to the right of a physician employed by a company to disclose medical information about an employee to the employer.
When an employer retains a physician to examine employees, generally no physician-patient relationship exists between the employee and the doctor. See Jones v. Tri-State Tel. & Tel. Co., 118 Minn. 217, 219 (1912). See also Hoesl v. United States, 451 F.Supp. 1170, 1176 (N.D. Cal. 1978) (when physician employed by employer to evaluate fitness of employees, physician's duties run primarily to employer). Physicians in such a situation, however, must still exercise reasonable care and skill in their relationship with the employees. See Beadling v. Sirotta, 41 N.J. 555, 561-562 (1964); DuBois v. Decker, 130 N.Y. 325, 332 (1891). Cf. Harriott v. Plimpton, 166 Mass. 585, 588 (1896) (although no physician-patient relationship existed between plaintiff and defendant doctor, plaintiff could maintain negligence action against doctor who merely examined plaintiff and relayed improper diagnosis of venereal disease to plaintiff's future father-in-law, which resulted in breaking of plaintiff's engagement).