The plaintiffs, an incorporated medical laboratory (ELM), its medical director, and its general manager, claim that the defendant, RKO General, Inc. (RKO), 3 defamed them in five television broadcasts in July of 1980. The plaintiffs also claim invasion of privacy and tortious interference with business relations as a result of thе broadcasts. A judge of the Superior Court allowed a motion for summary judgment in favor of RKO on all three counts. The plaintiffs appealed to the Appeals Court. We transferred the case to this court on our own motion. We affirm the judgment.
*781 1. The broadcasts. The five allegedly defamatory broadcasts were promрted by a news release issued jointly by the Boston office of the United States Department of Health and Human Services and the Massachusetts Department of Public Health. The July 2, 1980, news release, entitled “Health Alert,” was an effort by Federal and State officials to identify all physicians, clinics and patients whо might have used the ELM laboratory during the previous four years, because a joint Federal-State investigation had revealed that ELM had improperly screened or misread a large number of laboratory tests. The health alert indicated that “any woman who has had a pap smear taken by any of thеse physicians or clinics should contact them promptly to determine if rescreening is necessary.”
The health alert further stated that: (1) health officials knew that “some women could be at risk because their PAP slides were improperly screened or actually misread,” (2) “at least several hundred women are not aware that they are at some unnecessary risk of having abnormal, precancerous or cancerous conditions,” (3) “[a]n estimated 150,000 to 200,000 women had slides sent to ELM Medical Laboratory” between June, 1976, and July, 1980, and (4) up to July 2, 1980, there were “22 misread cases of abnormal PAP smears of the 1,219 slides rescreened by the [Federal] Center for Disease Control [(CDC), in Atlanta, Georgia].”
RKO news reporter Charlene Mitchell prepared and delivered several reports on the ELM Medical Laboratory, as a result of the health alert. Mitchell has stated that her reports were based not only on the hеalth alert press release, but also on interviews with State and Federal officials.
In the July 2, 1980, news program, RKO reported that “thousands of slides were misdiagnosed by a major medical lab in Boston,” and that “possibly as many as several hundred women are at risk for an abnormal[,] precancerous or cancerous condition, related to the cervix.” The defendant also reported that “retesting of some of the slides shows a 66% error rate,” and that “so far the discrepancies have all been in the false negative slide[s], called negative when they were truly positive.”
*782 The statement that a health alеrt was issued because “thousands of pap smears were misinterpreted” was repeated in the 6 p.m. broadcast on July 3, 1980, followed by the qualified statement that “thousands of the pap smears may have been misread.” Later that night, on the 11 p.m. news, RKO broadcast the statement, “The ELM Laboratory in Boston has bеen accused of misdiagnosing hundreds and perhaps thousands of pap smears . . . .” In the introduction to a July 5, 1980, news program, the defendant broadcast the following: “It was announced this week that more than 200,000 pap smears may have been misinterpreted at a Boston laboratory.” Its final report on the subject, on July 28, 1980, included the comment, “[ajccording to the state as many as twenty four hundred pap smears diagnosed at the ELM Lab could be faulty.”
2.
The fair report privilege.
Massachusetts recognizes the “fair report privilege,” which allows those who fairly and accurately report certain types of official or governmental action to be immune from liability for claims arising out of such reports. See, e.g.,
Jones
v.
Taibbi,
The fair report privilege applicable to governmental action has been described as “companion to the privilege to report judicial proceedings.”
MiGi, Inc.
v.
Gannett Mass. Broadcasters, Inc.,
The question, then, is which, if any, of RKO’s five broadcasts were fair and accurate reports of a public health warning. The statements on July 2 and 3 (at 6 p.m. and 11 p.m.) concerning the number of potentially-misread slides are protected by the privilege because they fairly represented the information supplied by the agencies. The health alert stated that, of 1,219 slides the CDC had rescreened, 22 had been misread. This represents 1.8 percent of 1,219 slides. Application of the 1.8 percent rate to the undisputed range of 150,000 to 200,000 slides ELM processed, yields a potential result of 2,700 tо 3,600 misread slides. Most of the broadcasts containing the allegedly inaccurate statements were qualified by phrases such as “possibly,” “as many as,” and “may have.”
The report that “[r]etesting of some of the slides shows a 66% error rate” is also a fair and accurate report of the agencies’ heаlth alert, when viewed in context. The broadcast indicated that this error rate reflected the number of “false negative” *784 results. 4 Prior to the broadcast, a pathologist from the Federal CDC had projected a false-negative rate of 83 per cent for the ELM slides to be retested. After the CDC had comрleted its investigation, the agency found the false-negative rate was actually 76.4 per cent, which it termed not significantly different from the original estimate. Thus, the report of a 66 per cent error rate was a fair one. The understatement favored the plaintiffs.
The defendant’s attribution to State officials that “as many as twenty four hundred pap smears diagnosed at the ELM Lab could be faulty” is also privileged because it substantially reflects the content of the governmental report. Retesting by the Federal CDC, which was cited in the same July 28, 1980, broadcast as a source of the information, demonstrates that the stаtement “as many as twenty four hundred” is accurate. The “sting” of this report would not have been significantly different if it had been correctly attributed to Federal, rather than State officials.
The July 5, 1980, statement that “more than 200,000 pap smears may have been misinterpreted,” is not, however, a fair or accuratе summary of the governmental report. For more than 200,000 pap smears to have been misinterpreted, ELM would have had to display an error rate greater than 100 per cent. While it is true that possibly as many as 200,000 patients were at risk because each had no way of knowing if hers was one of the misread рap tests, the broadcast did not accurately state that exposure. The health agencies never charged that ELM had a 100 per cent error rate. We now examine whether the July 5 statement defamed the plaintiffs.
3.
Defamation.
To establish a claim for defamation, a plaintiff must show, among other things, that the аlleged defamation was “of and concerning” the plaintiff.
New England Tractor-Trailer Training of Conn., Inc.
v.
Globe Newspaper Co.,
The plaintiffs do not claim that RKO intended the broadcasts to refer to the individual plaintiffs; hence, they must show that RKO was negligent in broadcasting words that could reasonably be interpreted to refer to them. The only mention of any individual is a statement, made in three broadcasts, that one former employeе appeared to be responsible for the majority of the faulty lab results and that the former employee was now working in another laboratory. Neither Baez-Giangreco nor At-tianese was a former employee working in another laboratory.
The plaintiffs submitted two affidavits in which a former cliеnt and an ELM employee indicated that they understood the broadcasts to refer to Baez-Giangreco and Attianese. These affidavits do not explain how their conclusion was a reasonable one based on the broadcasted statements. We conclude that the two individual plaintiffs failеd to demonstrate a genuine issue of material fact as to how they were personally defamed and thus the entry of summary judgment against them was appropriate on the defamation count on that basis alone.
To decide whether summary judgment was properly granted on the defamation count оn behalf of ELM, we must decide whether the remaining plaintiff, ELM, was a private or public figure so that we can determine the degree of fault the plaintiff must prove. See
Stone
v.
Essex County Newspapers, Inc.,
An individual may achieve public figure status if he “voluntarily injects himself or is drawn into a particular public controversy and therebyn becomes a public figure for a limited range of issues.”
Gertz
v.
Robert Welch, Inc.,
As a public figure for the purpose of the broadcasts, ELM was required tо come forward with clear and convincing evidence of actual malice in response to RKO’s motion for summary judgment.
New York Times Co.
v.
Sullivan,
Although the existence of actual malice raises a state-of-mind issue, summary judgment is still an appropriate method for resolving claims when a plaintiff has failed to present evidence from which the motion judge could draw an inference of actual malice.
Godbout v. Cousens,
The only broadcast that must be construed as potentially defamatory because it was not covered by the fair report privilege, is the July 5 broadcast in which the defendant stated, *787 “It was announced this week that more than 200,000 pap smears may have been misinterpreted at a Boston laboratory.” As the plaintiff has not challenged the defendant’s assertion that its sources for the story were the health alert and interviews with Federal and State officials, there is insufficient evidence that the defendant knew its mistaken statement to be false. Even though the challenged statement is not entirely accurate, it was one statement in a series of accurate broadcasts. The plaintiff has failed to demonstrate a genuine issue of material fact that RKO acted with reckless disregard for the truth in this instance.
4. The remaining counts. The plaintiffs claim that the trial judge erred in extending the fair report privilege to dispose of their remaining claims of invasion of privacy and tortious interference with business relations by summary judgment. The dеfendant has met its burden of showing that there was no genuine issue of material fact.
The only invasion of privacy the plaintiffs assert is “putting plaintiff[s] in a false light.” This court has not recognized that tort and does not choose to do so now.
Fox Tree
v.
Harte-Hanks Communications, Inc.,
The specific elements which must be proved to establish intentional interference with advantageous business relations are: “(1) a business relationship or contemplated contract of economic benefit; (2) the defendant’s knowledge of such relationship [or contract]; (3) the defendant’s intentional and malicious interference with it; [and] (4) the plaintiff’s loss, of advantagе directly resulting from the defendant’s conduct.”
Comey
v.
Hill,
Finally, we hold that the trial judge did not err in refusing to allow the рlaintiffs to amend their complaint a third time. Since the motion judge considered transcripts of the actual broadcasts, the plaintiffs were not prejudiced by the denial.
Kenney
v.
Sears, Roebuck & Co.,
Judgment affirmed.
Notes
We shall refer to both defendants as the defendant under the name “RKO.”
A “false negative” error results when cytology slides showing indications of abnormalities warranting further testing or treatment are classified by a screener as “normal.”