Wolsfelt v. Gloucester Times ( 2020 )


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    19-P-936                                            Appeals Court
    ROBERT WOLSFELT    vs.   GLOUCESTER TIMES.
    No. 19-P-936.
    Essex.     May 8, 2020. - September 1, 2020.
    Present:   Singh, Wendlandt, & McDonough, JJ. 1
    Libel and Slander. Newspaper. Internet. Limitations, Statute
    of. Practice, Civil, Summary judgment, Statute of
    limitations.
    Civil action commenced in the Superior Court Department on
    June 12, 2015.
    The case was heard by Shannon Frison, J., on a motion for
    summary judgment.
    Steven C. Goldwyn for the plaintiff.
    Jonathan M. Albano for the defendant.
    WENDLANDT, J.    In libel cases, the general rule is that the
    cause of action accrues, and the statute of limitations begins
    to run, on the date of the publication of the alleged defamatory
    1 Justice McDonough participated in the deliberation on this
    case while an Associate Justice of this court, prior to his
    reappointment as an Associate Justice of the Superior Court.
    2
    statement.     See Flynn v. Associated Press, 
    401 Mass. 776
    , 780
    (1988).     In this appeal, we apply the statute of limitations to
    a defamatory statement posted on a newspaper's website.     We hold
    that such Internet postings are subject to the single
    publication rule, which governs other types of aggregate
    communications.     Under the rule, a person may bring one (and
    only one) cause of action for defamation against the publisher
    based on its publication of the defamatory statement.     The
    statute of limitations for the action begins to accrue when the
    statement first is posted on the website.     We also hold that
    where (as here) the website is widely and publicly available and
    not maintained confidential, the discovery rule does not apply.
    Applying these principles to the defamatory articles in this
    case, we conclude that the plaintiff's claim is time barred as
    to the first publication.     With regard to the second
    publication, the alleged defamatory statements about the
    plaintiff's arrest are governed by the fair report privilege.
    Accordingly, we affirm the allowance of summary judgment in
    favor of the defendant.
    Background.    The plaintiff, Robert Wolsfelt, brought claims
    against the defendant, Gloucester Times, for its defamatory
    articles.    The articles concern two separate incidents of
    domestic violence, each of which resulted in Wolsfelt's arrest.
    3
    Article one.     The first incident occurred on November 30,
    2011. 2    The Gloucester Police Department received a 911 call from
    Wolsfelt who claimed he was injured after his fiancée pushed him
    down the stairs.     En route to the scene, the officers were
    notified that the fiancée had also called the police, stating
    that she had locked herself in the bathroom in fear of Wolsfelt.
    After the officers arrived, the fiancée told the officers that
    Wolsfelt called her earlier from a bar where he had been
    drinking; she told him not to return home.     Nonetheless,
    Wolsfelt (in an intoxicated state) returned home.     He rummaged
    through her pocketbook, and when she told him to stop, he
    grabbed her by the throat.     Officers noticed that she had red
    marks on her neck.     She pushed him, causing him to fall down the
    stairs. 3
    Wolsfelt was transported to a hospital where he relayed a
    different version of the events.     He stated that while
    retrieving his computer, his fiancée pushed him down the stairs.
    In response to questions regarding the red marks on his
    fiancée's neck, Wolsfelt posited that the marks may have been
    left when the fiancée was wrestling with her children.        After
    Wolsfelt was released from the hospital, he was arrested and
    2 We recite the facts as set forth in the police reports for
    each arrest.
    3    The fiancée did not seek a restraining order.
    4
    charged with domestic assault and battery.    On the same day,
    Gloucester Times published an article online regarding this
    incident (article one).    Article one, entitled "Gloucester
    Police/Fire:    City man charged in domestic assault," largely
    tracked the police report.
    On February 17, 2012, a "general continuance" with a "no
    abuse" order was entered in Wolsfelt's criminal case. 4
    Gloucester Times updated article one on its website, stating
    "[t]he charge of assault and battery brought against Robert
    Wolsfeld [sic] was continued without a finding on Feb. 17, 2012"
    (article one update).     The article one update appeared above the
    original article one, which was set forth in full on the same
    page.
    Article two.    The second incident occurred less than one
    year later, during the late hours of June 7, 2012.    The
    Gloucester Police Department received a 911 call from the
    fiancée, alleging that Wolsfelt was attempting to harm her, and
    that knives were present in the area.    En route to the scene,
    the officers received a call from Wolsfelt and directed him to
    remain outside.    When the officers arrived at the scene,
    Wolsfelt was sitting outside of the residence, apparently
    intoxicated.    He stated that he had an argument with his
    4   The charge was dismissed on May 18, 2012.
    5
    fiancée, and when she called the police, he tried to take the
    telephone from her.   Wolsfelt admitted that, during the ensuing
    fight, he pushed her.    His fiancée was also interviewed by the
    officers; she reiterated Wolsfelt's account, providing a few
    more details.    Wolsfelt was arrested and charged with, inter
    alia, domestic assault and battery.    On June 8, 2012, Gloucester
    Times published an article online regarding this incident
    (article two).   Article two, entitled "Gloucester Police/Fire:
    Lanesville man charged in domestic assault," largely tracked the
    police report.
    On February 19, 2013, Wolsfelt admitted to sufficient
    facts, and a continuance without a finding (CWOF) was entered.5
    Gloucester Times posted an update to article two, stating "[t]he
    charge of assault and battery brought against Robert Wolsfeld
    [sic] was continued without a finding for 18 months on Feb. 19,
    2013" (article two update).   The article two update appeared at
    the top of the webpage, just above article two, which was set
    forth in full.
    Wolsfelt's discovery of the articles.    Wolsfelt did not
    learn about the articles until February 2013, when he applied
    for a job.   On June 12, 2015, Wolsfelt brought an action against
    Gloucester Times for defamation and injunctive relief seeking
    5   The charge was dismissed on August 19, 2014.
    6
    removal of the two articles, along with their respective
    updates.     He asserted that the articles contained "untrue,
    incomplete, misleading[,] and damaging assertions," resulting in
    harm that included loss of reputation and potential employment.
    The filing date of the complaint was more than three years after
    article one, the article one update, and article two first were
    posted online; however, it was less than three years after the
    publication of the article two update.     Gloucester Times moved
    for summary judgment, which a Superior Court judge allowed on
    the basis that Wolsfelt's claims were time-barred and, in any
    event, the articles were protected under the fair report
    privilege.
    Discussion.     "The standard of review of a grant of summary
    judgment is whether, viewing the evidence in the light most
    favorable to the nonmoving party, all material facts have been
    established and the moving party is entitled to a judgment as a
    matter of law."    Augat, Inc. v. Liberty Mut. Ins. Co., 
    410 Mass. 117
    , 120 (1991), citing Mass. R. Civ. P. 56 (c), 
    365 Mass. 824
    (1974).    Summary judgment "make[s] possible the prompt
    disposition of controversies on their merits without a trial, if
    in essence there is no real dispute as to the salient facts or
    if only a question of law is involved" (citation
    omitted).    Kourouvacilis v. General Motors Corp., 
    410 Mass. 706
    ,
    715 (1991).    Where the nonmovant bears the burden of proof at
    7
    trial, the moving party "is entitled to summary judgment if [it]
    demonstrates . . . that [the nonmovant] has no reasonable
    expectation of proving an essential element of [his] case"
    (citation omitted).   Butcher v. University of Mass., 
    483 Mass. 742
    , 747 (2019), cert. denied sub nom. Butcher v. Vishniac,
    S. Ct.    (2020).   Our review is de novo.   See LeBlanc v. Logan
    Hilton Joint Venture, 
    463 Mass. 316
    , 318 (2012).
    1.    Statute of limitations.   We turn first to the question
    whether Wolsfelt's complaint for defamation was filed within the
    statute of limitations.    An action for defamation must be
    commenced within three years after the cause of action accrues.
    G. L. c. 260, § 4.    "In defamation cases, 'the general rule is
    that the cause of action accrues, and the statute of limitations
    begins to run, on publication of the defamatory statement.'       A
    statement is published when it is communicated to a third
    party."   Harrington v. Costello, 
    467 Mass. 720
    , 725 (2014),
    quoting 
    Flynn, 401 Mass. at 780
    .    Where a defendant raises the
    statute of limitations as an affirmative defense, the plaintiff
    bears the burden of proving the action was timely
    commenced.   Parr v. Rosenthal, 
    475 Mass. 368
    , 376 (2016).
    a.    Article one and update.   With regard to article one and
    the article one update, Wolsfelt filed his complaint more than
    three years after publication of the alleged defamatory
    statements on the defendant's website.    Accordingly, Wolsfelt
    8
    "has the burden of establishing facts that take him outside the
    statutory three-year limitations period."     
    Harrington, 467 Mass. at 725
    .
    i.      Single publication rule.   Wolsfelt first appears to
    argue that each time a third party accessed the website on which
    article one and its update were posted, a new communication
    occurs, and thus the statute of limitations has not run so long
    as article one and its update "remain[] on the Internet."
    Concluding that the single publication rule applies, we
    disagree.
    Under the common law, each separate communication of a
    defamatory statement to a third party gave rise to a new cause
    of action.     See Restatement (Second) of Torts § 577A(1) (1977).
    The single publication rule addresses the treatment of an
    aggregate communication of a defamatory statement as occurs
    when, for example, a statement is made to a crowd, broadcast by
    television or radio, or printed in a newspaper or book.      Under
    the rule, the publication of a defamatory statement in this
    aggregate manner is, in legal effect, one publication, although
    such publication is received by multiple third parties at the
    same time or consists of many copies widely distributed.
    See Bigelow v. Sprague, 
    140 Mass. 425
    , 427-428 (1886) ("all the
    several deliveries [of the defamatory pamphlet] made by [the
    defendant] were to be treated as substantiating the allegation
    9
    of a [single] publication. . . .   [F]or, if each delivery of a
    copy is to be dealt with only[,] and for all purposes[,] as a
    separate publication, courts could not distinguish between
    publication in a newspaper and in a private letter.    A closer
    analogy . . . would seem to be that of an oral slander addressed
    to a crowd"). 6
    Rather than each copy giving rise to a separate cause of
    action, the single publication rule treats the aggregate
    communication as one publication that gives rise to one and only
    one cause of action.    See Restatement (Second) of Torts
    § 577A(4).    The statute of limitations for the single action
    runs from the point at which the original dissemination
    occurred.    See 
    Flynn, 401 Mass. at 780
    (in libel cases, statute
    of limitations begins to run on date of publication).7
    The single publication rule is founded on two
    considerations.    First, "[t]he rule is justified by the
    necessity of protecting defendants and the courts from the
    numerous suits that might be brought for the same words if each
    person reached by such a large-scale communication could serve
    6 See also Restatement (Second) of Torts § 577A(3), at 208
    ("Any one edition of a book or newspaper, or any one radio or
    television broadcast, exhibition of a motion picture or similar
    aggregate communication is a single publication").
    7 See also Firth v. State, 
    98 N.Y.2d 365
    , 369 (2002) (under
    single publication rule, statute of limitations runs from date
    of first publication).
    10
    as the foundation for a new action."    Restatement (Second) of
    Torts § 577A comment c, at 209. 8   A contrary rule -- one that
    would permit a new cause of action for each third party who
    receives the communication to restart the limitations period --
    would thwart the repose intended by the Legislature in
    establishing a statute of limitations in the first place.
    See Firth v. State, 
    98 N.Y.2d 365
    , 369 (2002).
    Second, the single publication rule inures to the benefit
    of the allegedly defamed party, who may recover all damages
    stemming from the multiple copies of the publication in the one
    action.   See 
    Bigelow, 140 Mass. at 427
    ("when a libel is printed
    in an edition of many copies for general circulation, the extent
    of the circulation procured or caused by the publisher may be
    shown against him as evidence of the injury to the person
    libeled").   See also 
    Firth, 98 N.Y.2d at 370
    ("the single
    publication rule actually reduces the possibility of hardship to
    plaintiffs by allowing the collection of all damages in one case
    commenced in a single jurisdiction").
    These considerations counsel in favor of applying the
    single publication rule to Internet publications.    The Internet
    8 See Christoff v. Nestlé USA, Inc., 
    47 Cal. 4th 468
    , 478
    (2009) (common-law multiple publications rule "had the potential
    to subject the publishers of books and newspapers to lawsuits
    stating hundreds, thousands, or even millions of causes of
    action for a single issue of a periodical or edition of a book"
    [citation omitted]).
    11
    (when coupled with a robust search engine) comprises a platform
    for instantaneous, worldwide communications to a multitude of
    readers across geographies, often for an indefinite period of
    time.   See 
    Firth, 98 N.Y.2d at 370
    , citing Reno v. American Civ.
    Liberties Union, 
    521 U.S. 844
    , 853 (1997) (policies impelling
    original adoption of single publication rule "are even more
    cogent when considered in connection with the exponential growth
    of the instantaneous, worldwide ability to communicate through
    the Internet").   Permitting a separate cause of action for each
    "hit" or viewing of defamatory statement by a third party on the
    Internet "would implicate an even greater potential for endless
    retriggering of the statute of limitations, multiplicity of
    suits and harassment of defendants.    Inevitably, there would be
    a serious inhibitory effect on the open, pervasive dissemination
    of information and ideas over the Internet, which is, of course,
    its greatest beneficial promise."     
    Firth, supra
    .   See Pippen
    v. NBCUniversal Media, LLC, 
    734 F.3d 610
    , 615 (7th Cir. 2013)
    ("excluding the Internet from the single-publication rule would
    eviscerate the statute of limitations and expose online
    publishers to potentially limitless liability").      At the same
    time, the single publication rule permits a plaintiff to
    recover, in one suit, all damages stemming from the allegedly
    defamatory statement instead of filing separate suits each time
    12
    a third party accesses the webpage containing the defamatory
    content.   See 
    Bigelow, 140 Mass. at 427
    ; 
    Firth, supra
    .
    For these reasons, "[e]very state court that has considered
    the question applies the single-publication rule to information
    online."   
    Pippen, 734 F.3d at 615
    , citing Christoff v. Nestlé
    USA, Inc., 
    47 Cal. 4th 468
    (2009); Churchill v. State, 378 N.J.
    Super. 471 (App. Div. 2005); Woodhull v. Meinel, 
    145 N.M. 533
    (App. 2008); Firth, 
    98 N.Y.2d 365
    ; T.S. v. Plain Dealer, 
    194 Ohio App. 3d 30
    (2011); Kaufman v. Islamic Soc'y of Arlington,
    
    291 S.W.3d 130
    (Tex. App. 2009); Ladd v. Uecker, 
    323 Wis. 2d 798
    (App. 2010). 9    Additionally, Federal courts considering the
    question have concluded that the relevant State supreme court
    would agree. 10   Accordingly, we now join those jurisdictions and
    9 See Simon v. Arizona Bd. of Regents, 28 Media L. Rep.
    (BNA) 1240 (Ariz. Super. Ct. 1999); Traditional Cat Ass'n v.
    Gilbreath, 
    118 Cal. App. 4th 392
    (2004); McCandliss v. Cox
    Enters., Inc., 
    265 Ga. App. 377
    (2004), overruled on other
    grounds by Infinite Energy, Inc. v. Pardue, 
    310 Ga. App. 355
    ,
    363 (2011).
    10See 
    Pippen, 734 F.3d at 615
    , citing Shepard v.
    TheHuffingtonPost.com, Inc., 
    509 Fed. Appx. 556
    (8th Cir. 2013)
    (Minnesota law); In re Philadelphia Newspapers, LLC, 
    690 F.3d 161
    , 174–175 (3d Cir. 2012) (Pennsylvania law). See also
    Kiebala v. Boris, 
    928 F.3d 680
    , 686 (7th Cir. 2019) (Illinois
    law); Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 
    512 F.3d 137
    , 146 (5th Cir. 2007) (Texas law); Jankovic v. International
    Crisis Group, 
    494 F.3d 1080
    , 1087 (D.C. Cir. 2007) (District of
    Columbia law); Van Buskirk v. New York Times Co., 
    325 F.3d 87
    ,
    89-90 (2d Cir. 2003) (New York law); Lane v. Strang
    Communications Co., 
    297 F. Supp. 2d 897
    (N.D. Miss. 2003)
    (Mississippi law); Mitan v. Davis, 
    243 F. Supp. 2d 719
    (W.D. Ky.
    2003) (Kentucky law).
    13
    extend the single publication rule to articles posted to an
    online media's publicly available website.11
    ii.   Discovery rule.   Wolsfelt next argues that the
    discovery rule tolled the statute of limitations for article one
    and its update because he did not learn about the publications
    until February 2013, when he applied for a job.    The discovery
    rule tolls the statute of limitations period for certain causes
    of action such that the action does not "accrue" (and hence the
    limitations does not start) until "the plaintiff learns, or
    reasonably should have learned, that he has been harmed by the
    defendant's conduct" (citation omitted).    
    Flynn, 401 Mass. at 781
    (collecting cases).   The rule "applies only to 'inherently
    unknowable' causes of action."
    Id., quoting White v.
    Peabody
    Constr. Co., 
    386 Mass. 121
    , 130 (1982).    By contrast, where an
    alleged defamatory publication is broadly circulated to the
    public, and did not involve concealment or confidential
    communications, the discovery rule does not apply.
    11Wolsfelt cites to no authority declining to extend the
    single publication rule to Internet publications; and the only
    case we have located declining to apply the single publication
    rule to an Internet publication addressed a set of confidential
    electronic communications with limited accessibility that was
    different in kind from the type of mass communication presented
    here. See Swafford v. Memphis Individual Practice Ass'n, Tenn.
    Ct. App., No. 02A01-9612-CV-00311 (June 2, 1998) (where
    defamatory statements from electronic database were
    confidentially maintained and communicated only in response to
    member request, single publication rule did not apply).
    14
    See 
    Harrington, 467 Mass. at 727
    n.10; Flynn, supra at 781-782 &
    n.7.    Thus, in Flynn, supra at 781, the court held that the
    discovery rule does not toll the statute of limitations for
    defamatory statements in a printed newspaper widely available to
    the public.    See Fleury v. Harper & Row, Publs., Inc., 
    698 F.2d 1022
    , 1028 n.4 (9th Cir. 1983) (discovery rule inapplicable to
    book publication announced in nationally distributed magazine
    widely available to public as it was not confidential document
    nor concealed).
    The same reasoning precludes application of the discovery
    rule in the present case.    In particular, the record does not
    establish that Wolsfelt's cause of action was inherently
    unknowable on November 30, 2011, when article one published or
    on February 17, 2012, when the update published.     Wolsfelt does
    not allege that the article or the update were concealed or
    confidential.     To the contrary, Wolsfelt admits that the article
    and the update were publicly available on the Gloucester Times'
    website and that a search engine query with his name produces
    the article and update as a result.     Accordingly, Wolsfelt's
    claims for defamation regarding article one and its update,
    brought on June 12, 2015, are time barred.
    b.   Article two and update.   Wolsfelt argues that article
    two, which was published on June 8, 2012, and was updated on
    February 19, 2013, stands on different footing in light of the
    15
    republication exception to the single publication rule.
    Specifically, the single publication rule applies only to the
    first release of a defamatory statement; under the republication
    exception, "[a]ny future republication of the [alleged] false
    statements . . . could form the basis for a new cause of action
    against the republisher."    
    Flynn, 401 Mass. at 780
    n.5.   Thus,
    republishing material, editing and reissuing material, or
    placing it in a new form that includes the defamatory material,
    can create a new cause of action, which begins to run on the
    date of republication.   See Restatement (Second) of Torts § 577A
    comment d, at 210 ("the single publication rule . . . does not
    include separate aggregate publications on different
    occasions").    Wolsfelt contends that the article two update
    acted as a republication of article two.   We need not decide
    whether the placement of the article two update on the same
    webpage and just above the text of article two republished
    article two because, even assuming arguendo that it did, the
    statements in article two fall within the fair report
    privilege. 12
    12As courts in other jurisdictions have noted, the
    application of the republication exception is complicated with
    regard to Internet publications because many websites "are in a
    constant state of change, with information posted sequentially
    on a frequent basis." 
    Firth, 98 N.Y.2d at 371
    . Application of
    the republication exception to any change of a website would, in
    the context of the Internet, foil the single publication rule,
    "discourag[ing] the placement of information on the Internet or
    16
    2.   Fair report privilege.   "The fair report privilege
    establishes a safe harbor for those who report on statements and
    actions so long as the statements or actions are official and so
    long as the report about them is fair and accurate."   Howell
    v. Enterprise Publ. Co., 
    455 Mass. 641
    , 651 (2010).
    slow[ing] the exchange of such information, reducing the
    Internet's unique advantages [and] . . . forc[ing a publisher]
    either to avoid posting on a Web site or [to] use a separate
    site for each new piece of information."
    Id. at 372.
    These
    courts have held that minor or nonsubstantive changes to an
    Internet posting do not fall within the republication exception,
    but substantive changes may. Compare Kiebala v. Boris, 
    928 F.3d 680
    , 686-688 (7th Cir. 2019) (republication doctrine did not
    apply where defendant did not change substance of original post
    but only updated date on website); In re Philadelphia
    Newspapers, LLC, 
    690 F.3d 161
    , 175 (3d Cir. 2012) (neither
    hyperlink nor reference to defamatory material fell within
    republication exception); Jankovic v. International Crisis
    Group, 
    494 F.3d 1080
    , 1088 (D.C. Cir. 2007) (online posting of
    previously printed report without updating content did not fall
    within republication exception); Canatella v. Van De Kamp, 
    486 F.3d 1128
    , 1135-1136 (9th Cir. 2007) (no republication where
    defendant publishers changed Internet address of original post
    containing defamatory statement but content remained unchanged);
    Salyer v. Southern Poverty Law Ctr., Inc., 
    701 F. Supp. 2d 912
    ,
    916-917 (W.D. Ky. 2009) (website articles that referenced
    original defamatory article did not fall within republication
    exception because they merely called existence of article to
    attention of new audience and did not present defamatory content
    of article to audience); 
    Firth, 98 N.Y.2d at 371
    ("mere addition
    of unrelated information to a Web site [that had a defamatory
    statement as to which the statute of limitations has run] cannot
    be equated with the repetition of defamatory matter in a
    separately published edition of a book or newspaper . . . for it
    is not reasonably inferable that the addition was made either
    with the intent or the result of communicating the earlier and
    separate defamatory information to a new audience"), with Yeager
    v. Bowlin, 
    693 F.3d 1076
    , 1082 (9th Cir. 2012) (adding
    substantive information regarding plaintiffs to website may
    create new cause of action under republication exception).
    17
    See 
    Butcher, 483 Mass. at 750
    . (discussing history of fair
    report privilege).      Where, as here, police undertake an official
    response to a complaint, such as an arrest, both that response
    and the allegations that gave rise to it fall within the
    privilege.   See Jones v. Taibbi, 
    400 Mass. 786
    , 795 (1987) ("The
    publication of the fact that one has been arrested, and upon
    what accusation, is not actionable, if true" [citation
    omitted]).   Wolsfelt does not contest that he was arrested as
    reported by article two.     Nonetheless, he asserts that the
    omission of certain details strips the article of the
    protections afforded by the fair report privilege.
    "[A] report need give only a rough-and-ready summary that
    was substantially correct in order to qualify for the fair
    report privilege.    A statement is considered a fair report if
    its gist or sting is true, that is, if it produces the same
    effect on the mind of the recipient which the precise truth
    would have produced" (quotations and citation omitted).     ELM
    Med. Lab., Inc. v. RKO Gen., Inc., 
    403 Mass. 779
    , 783 (1989).
    Article two tracks almost precisely the police report of
    Wolsfelt's arrest. 13    Wolsfelt complains only that it left out
    the detail that his lip was bleeding, that the fiancée later
    accused him not only of shoving her but also of choking her, and
    13Wolsfelt does not claim the article two update was
    defamatory.
    18
    that Gloucester Times did not interview him to obtain "his side"
    for the publication.     None of these affect the application of
    the privilege; the gist and sting of article two is the same
    without these details.    Wolsfelt, who was intoxicated at the
    time, was arrested for assault and battery after his fiancée,
    whom he admitted shoving, called the police.       Nothing more was
    required to provide the "rough-and-ready summary" that is
    protected by the fair report privilege.14
    Id. Judgment affirmed. 14Wolsfelt
    also contends that statements in article two
    concerning separate incidents unrelated to Wolsfelt were
    "prejudicial inaccuracies" and harmful because the article did
    not indicate expressly that there were separate crimes,
    unrelated to Wolsfelt. No reasonable reading of article two
    fairly suggests that these distinct incidents, which are
    expressly described as involving different occurrences at
    different residences, concerned Wolsfelt. See New England
    Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co.,
    
    395 Mass. 471
    , 480 (1985).