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A sharp distinction must therefore be drawn between the interest which is protected by the New York “Right of Privacy” statute and that which is protected by G.L. c. 214, s 3A. In *749
Themo v. New England Newspaper Publishing Co., 306 Mass. 54, 57, 27 N.E.2d 753, 755 (1940), this court characterized the right of privacy as a right which “directly concerns one's own peace of mind.” In contrast, the interest which is protected by G.L. c. 214, s 3A, is the interest in not having the commercial value of one's name, portrait or picture appropriated to the benefit of another. The value of one's name, portrait or picture is not appropriated “when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity.” See Restatement (Second) of Torts s 652C, comment d (1977). Thus, the crucial distinction under G.L. c. 214, s 3A, must be between situations in which the defendant makes an incidental use of the plaintiff's name, portrait or picture and those in which the defendant uses the plaintiff's name, portrait or picture deliberately to exploit its value for advertising or trade purposes.

Mass. Gen. Laws c. 214 § 3A provides,
inter alia, that “[a]ny person whose name, portrait or picture is used within the commonwealth for advertising purposes or for the purposes of trade without his written consent ... may recover damages for any injuries sustained by reason of such use.” The statute protects an individual's interest in preventing “the commercial value of one's name, portrait, or picture appropriated [for] the benefit of another.”
Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 749, 400 N.E.2d 847 (1980). However, the value of one's name or picture “is not appropriated ‘when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes*140
of publicity.’ ”
Id. at 749, 400 N.E.2d 847 (quoting Restatement (Second) of Torts § 652(c), comment d (1977)). “ ‘The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness' ”.
Id. (quoting
Nelson v. Maine Times, 373 A.2d 1221 (Me.1977));
Tropeano, 379 Mass. at 749, 400 N.E.2d 847 (dismissing commercial use claim because plaintiff's photograph was published as part of commentary, not as means of soliciting sales or in association with an advertisement).

Any person whose name, portrait or picture is used within the commonwealth for advertising purposes or for the purposes of trade without his written consent may bring a civil action in the superior court against the person so using his name, portrait or picture, to prevent and restrain the use thereof ...

While the plaintiff previously authorized the defendants' use of his picture, it is clear that he does not do so now. Similarly, while the plaintiff at one time authorized the defendants' use of his name in the title of the defendants' publications without the payment of royalties, he now no longer does so. The plaintiff has thus made a showing that he will more likely than not succeed on the claimed violation of M.G.L. c. 214, § 3A.

1.
G.L. c. 214, § 3A. This statute provides in material part: “Any person whose name ... is used ... for the purposes of trade without his written consent **17
may bring a civil action ... and may recover damages for injuries sustained....” It is clear that, when the defendant responded truthfully to an interrogatory that he had consulted with the plaintiff, he did not use such name “for the purposes of trade” as that term is used in the statute. It may be too much to say that the defendant was compelled to disclose the plaintiff's name. However, in pursuit of compliance with the spirit of full discovery promoted by the Massachusetts Rules of Civil Procedure (see Mass.R.Civ.P. 26[b][4], 365 Mass. 772 [1974] ), the defendant's disclosure of the plaintiff's name is hardly blameworthy or actionable. See
Ager v. Jane C. Stormont Hosp. & Training Sch., 622 F.2d 496, 501 (10th Cir.1980).

In this connection, we are not oblivious to the potential abuse for which such disclosure may be used. It is all too clear that the use of prominent names in a specialty implicated in a case may be useful in forcing a settlement. An expert should be protected from such exploitation if he has been a stranger to the litigation. However, the plaintiff here was no stranger to the litigation because he and his assistant had discussed the case with the defendant and with the attorneys in the defendant's law office and even expressed an interest in it.

Plaintiff McMann's first claim is for invasion of his statutory right of privacy under Massachusetts law. “A person shall have a right against unreasonable, substantial or serious interference with his privacy.” ^FN49 The Massachusetts Supreme Judicial Court has explained this right:

“The notion of a right of privacy is founded on the idea that individuals may hold close certain manuscripts, private letters, family photographs, or private conduct which is no business of the public and the publicizing of which is, therefore, offensive. The appearance of a person in a public place necessarily involves doffing the cloak of privacy which the law protects.” ^FN50

Mr. McMann also has the right to prevent others from using his likeness for advertising purposes.^FN51 The right protected in this statute is the “interest in not having the commercial value of one's name, portrait or picture appropriated to the benefit of another.” ^FN52 This right is not infringed when Mr. McMann's portrait “is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity.” ^FN53 By posting Paul McMann's photograph on his webpage, John Doe did not attempt to employ the photo for commercial value, but rather as part of a declaration of his opinion of Mr. McMann. John Doe has not infringed Mr. McMann's statutory rights to prevent appropriation of his name or likeness for commercial gain.

Third, the district court concluded that Donoghue was likely to prevail on his claim that the Defendants-Appellees used his name and photograph in a manner that violated Mass.Gen.L. ch. 214 § 3A (Count II). The section of the statute quoted by the district court reads:

Any person whose name, portrait or picture is used within the commonwealth for advertising purposes or for the purposes of trade without his written consent may bring a civil action in the superior court against the person so using his name, portrait or picture, to prevent and restrain the use thereof....