In a ruling written by former Supreme Court Justice David Souter, sitting by designation, the First Circuit concluded that Cynosure, Inc., was owed no coverage by St. Paul Fire and Marine Insurance Company under a Massachusetts commercial policy insuring against injury caused by advertising.
Cynosure is a defendant in a suit charging it with violating the Telephone Consumer Protection Act by sending commercial fax messages without the consent of the recipients, advertising its various beauty products. The policy provided coverage for "making known to any person or organization covered material that violates a person's right to privacy." Cynosure asserted that this applied to the intrusion of privacy that the fax recipients allegedly suffered.
The district court agreed, relying on Terra Nova Ins. Co. v. Fray-Witzer, 449 Mass. 406 (2007), issued by the Supreme Judicial Court of Massachusetts in 2007. The policy construed in that case covered advertising liability for "publication of material that violates a person's right of privacy." The First Circuit, however, concluded that this policy language was sufficiently different from the "making known" language in Cynosure's policy that the Terra Nova case did not apply, and thus declared Massachusetts law a "clean slate" on the issue at hand. Justice Souter went on to say that "in order to give rise to tort liability for violating the third party's right of privacy, the material communicated must ... reveal some fact the third party reasonably wishes to keep others from being told." Thus, the policy at issue only covers disclosure of private information, not intrusion into the privacy of others.