These are appeals from orders sustaining demurrers to the declarations in two actions, one in tort and the other in contract or tort.
The allegations common to both declarations are as follows. The plaintiff Michael P. Brauer is the seven year old son of the plaintiff Marie Brauer. Michael and his mother have resided together in Boston since Michael’s birth in 1957. The defendant publishes the Boston Globe, a newspaper widely circulated in Boston and throughout the Commonwealth. Sometime in November of 1962, the defendant sent a reporter and a photographer to interview the plaintiffs at their home “relative to the unfortunate financial circumstances in which they found themselves with . . . Christmas . . . approaching.” The interview was to be used in the defendant’s “Globe Santa” articles, “an annual series appearing in the . . . [Globe] for several years prior to 1962, and in subsequent years to the present, designed to raise money and gifts for needy children and their families.” Marie “consented to . . . [the] interview . . . provided that their actual names and addresses were not used.” The defendant’s representative then photographed Michael “in a posed position . . . permission being granted by . . . [his] mother with the understanding that the photograph was to be used only in connection with the said . . . series.” A few weeks later an entire page of photographs, including the one taken of Michael, appeared in the Globe. ‘ ‘ [N] eigh-bors of . . . [Marie] and her family were aware of the . . . interview and of the photograph being taken and were able to recognize . . . [its] subject . . . as being” Michael. Subsequently, Marie’s friends and relatives “were made aware” that the photograph was of Michael.
On April 2, 1965 (more than two years later), the same photograph was published in the Globe, over a caption *55 which read: “Help for the Mentally Retarded.” It was “apparently used to illustrate an article . . . dealing with health and welfare legislation . . . [proposed] by the Governor of the Commonwealth . . ..” The plaintiffs’ other allegations charge that this publication of the photograph was made falsely and maliciously, without authorization of either plaintiff, and “in violation of the terms of the permission granted” by Marie at the time it was taken; “that the defendant failed to exercise due diligence to determine whether or not the subject of the photograph . . . was mentally retarded and that . . . [this] failure . . . was reckless ; that the defendant knew, or ought to have known, that the inference to be drawn from the . . . use of the photograph and the accompanying article ... is that the subject of said photograph is mentally retarded.”
Affixed to the plaintiffs’ declarations are photostatic copies of the print which appeared in the Globe on both occasions. The photograph is a side view of a six to nine year old boy sitting bent over on a stairway in apparent dejection. His face is turned and, with the exception of one ear and the partial outline of the back of his head, none of his features or facial characteristics is visible. It appears that these areas were purposely obliterated by the publisher.
Michael’s declaration contains three counts. Count 1 alleges that the defendant’s second publication of the picture was defamatory. “A demurrer to a declaration for libel is not to be sustained unless the words cannot be reasonably understood in a defamatory sense, or, to express it in another way, unless they are incapable of a defamatory meaning. The test is whether, in the circumstances, the writing discredits the plaintiff in the minds of any considerable and respectable class of the community. A publication is defamatory when it tends to injure one’s reputation in the community and to expose him to hatred, ridicule, and contempt, an imputation of crime or of bad character or an injury in one’s office or business not being essential.”
Muchnick
v.
Post Publishing Co.
The defendant does not contend that the false imputation that a person is mentally retarded does not fall within this definition of a defamatory statement. It does argue, however, that since Michael’s identifying characteristics are obscured in the photograph, nothing defamatory was said of and concerning him. See
McCallum
v.
Lambie,
This argument is unsound. There is no requirement in an action of libel “that the defamatory matter be communicated to a large or even substantial group of persons. It is enough that it is communicated to a single individual other than the one defamed.” Restatement: Torts, § 577. See
Bigelow
v.
Sprague,
Michael’s second count is predicated on the existence of an agreement between Marie and the defendant regarding the use to which the photograph might be put. Laying to one side the question whether a right of action could accrue to Michael under such an agreement, the declaration speaks only of an “understanding that the photograph was to be used only in connection with the . . . G-lobe Santa series.” The plaintiff cites no authority — and we are aware of none — standing for the proposition that an implied limitation in the terms of a consent to the use of a photograph will, without consideration, support an action of contract.
Michael’s third count is based upon an alleged invasion of his right of privacy. As yet, no case has determined that there exists in this Commonwealth a legally protected right of privacy. See
Themo
v.
New England Newspaper Publishing Co.
The plaintiff has sought to bring his case within a group of decisions from other jurisdictions which are now generally recognized as holding that “ [pjublicity which places the plaintiff in a false light in the public eye” is actionable as an invasion of his right of privacy.
2
These decisions have held that this right was invaded where the photograph of a taxicab driver was used to illustrate an article on the propensity of such drivers to cheat their customers
(Peay
v.
Curtis Publishing Co.
For this same reason the demurrer to Marie’s declaration, also based on an invasion of privacy, was rightly sustained. We might note, moreover, that our decision in
Kelley
v.
Post Publishing Co.
The order sustaining the demurrer in the action brought by Marie is affirmed. In the action brought by the minor plaintiff the order sustaining the demurrer on the first count is reversed; on the second and third counts it is affirmed.
So ordered.
Notes
See Prosser, Privacy, 48 Cal. L. Rev. 383, 389, where the author attempts to classify into four general categories the myriad sets of circumstances in which rights of privacy have been held to have been violated. See also Wade, Defamation and the Right of Privacy, 15 Vanderbilt L. Rev. 1093; Note, 50 Cal. L. Rev. 357.