When Does Unwanted Contact Become Harassment Under Massachusetts Law?

By Attorney Joseph Serpa | Georgetown University Law Center | 30 Years Massachusetts Criminal Defense

June 2026

A social media follower who comments on a public figure’s posts. A fan who approaches a television personality at a road race and asks for a photograph. A person who emails a professional team requesting to attend an industry event and sit near a colleague they admire. Are any of these acts of harassment under Massachusetts law? The answer — almost certainly not — is more legally specific than most people realize, and it matters enormously for anyone who has been served with a G.L. c. 258E harassment prevention order or who is facing a 258E application in a Massachusetts District Court.

Massachusetts courts have been clear that the 258E statute was not designed to reach all uncomfortable, unwelcome, or offensive conduct. It was designed to address genuine harassment. The line between the two is drawn by three specific legal requirements that every 258E plaintiff must satisfy — and that every defendant has the right to challenge.

The Statutory Standard: What “Harassment” Actually Means Under G.L. c. 258E

Under G.L. c. 258E, § 1, harassment is defined as either (A) three or more acts of willful and malicious conduct aimed at a specific person that would cause a reasonable person to suffer substantial emotional distress, or (B) a single act constituting one of the following criminal offenses: assault, assault and battery, indecent assault and battery, rape, statutory rape, criminal harassment under G.L. c. 265, § 43A, or stalking under G.L. c. 265, § 43.

In the vast majority of civil 258E cases, the plaintiff is proceeding under the three-act prong — not the criminal offense prong. The three-act prong has three independent requirements for each alleged act:

• Willful: the act must have been intentional, not accidental
• Malicious: the act must have been without legal justification and with an intent to harm
• Would cause a reasonable person to suffer substantial emotional distress: not mere discomfort, annoyance, or offense — substantial psychological suffering

Each of the three required acts must independently satisfy all three elements. An act that is willful but not malicious does not count. An act that is malicious but would not cause a reasonable person substantial distress does not count. A plaintiff who can identify three unwelcome interactions but cannot establish all three elements for each one cannot obtain a 258E order under the three-act prong.

The Controlling Cases: O’Brien, Gassman, and Seney

O’Brien v. Borowski (461 Mass. 415, 2012): Malice Requires Intent to Harm, Not Just Unwelcomeness

The Supreme Judicial Court’s 2012 decision in O’Brien v. Borowski (461 Mass. 415) is the foundational 258E decision. In O’Brien, the SJC held that the maliciousness requirement of the 258E statute demands more than conduct that is merely unwelcome or offensive. Maliciousness requires conduct that is without legal justification and motivated by an intent to harm. The Court was explicit that the Legislature did not intend to reach all offensive or uncomfortable conduct with the 258E statute — only conduct that constitutes genuine harassment.

The practical implication of O’Brien is significant. A neighbor who files a noise complaint with the city, a landlord who pursues eviction proceedings, a business competitor who sends aggressive but lawful correspondence, and a fan who approaches a public figure at a public event — all of these persons may be engaging in conduct the other party finds unwelcome. None of them are engaging in malicious conduct under O’Brien unless they acted without legal justification and with an intent to cause harm to the specific individual. Unwelcomeness, standing alone, is not malice.

The O’Brien Court also recognized that the status of the plaintiff matters. Where the plaintiff is a public figure who has voluntarily cultivated public attention, the threshold for what constitutes harassment directed at that person in their public capacity is higher than it would be for a private individual. A person who chooses a public career — and who actively publicizes personal information to attract and engage an audience — accepts that members of that audience will engage with them in public settings.

Gassman v. Reason (90 Mass. App. Ct. 569, 2016): Substantial Emotional Distress Is an Objective Standard

The Appeals Court’s decision in Gassman v. Reason (90 Mass. App. Ct. 569, 2016) confirmed that the “substantial emotional distress” prong of the 258E standard is objective — it asks what a reasonable person in the plaintiff’s position would experience, not merely what this particular plaintiff reports feeling. Substantial emotional distress requires more than discomfort, inconvenience, or subjective upset. It requires distress of a level that would cause a reasonable person substantial psychological suffering.

This distinction matters considerably in cases involving public figures and people who have chosen to interact with the public through their professional roles. A television reporter who has cultivated a public following, publicized personal milestones and life events to that following, and regularly interacts with viewers in public settings is, by the objective standard, less likely to experience substantial emotional distress from the interactions of an attentive viewer than a private individual would be from comparable contact. The objective reasonable person standard asks us to evaluate the distress claim against the specific circumstances of the plaintiff, including whether those circumstances involve a voluntary public role.

Seney v. Morhy (467 Mass. 58, 2014): Prospective Fear Is Not Enough

In Seney v. Morhy (467 Mass. 58, 2014), the SJC held that a 258E order does not issue on the basis of anticipated or feared future conduct that has not yet occurred. The statute addresses conduct that the defendant has committed — past acts that satisfy the three-act standard. It is not available as a prophylactic measure against conduct the plaintiff fears may occur in the future.

This holding directly addresses one of the most common patterns in 258E applications: a plaintiff who has experienced a series of unwelcome interactions and who fears that more will follow. Under Seney, the plaintiff must demonstrate that the conduct that has already occurred satisfies the three-act willful and malicious standard. Generalized fear of future contact — “I’m afraid he will show up somewhere I am” — without a present predicate of qualifying past conduct is not sufficient for issuance of a 258E order.

The Specific Fact Patterns: What Crosses the Line and What Doesn’t

Social Media Comments on Public Posts: Almost Never Harassment

A person who responds to another’s public social media posts — posts that the account holder has made accessible to the general public, or to a broad follower base — is engaging with content the post author chose to make public. Responding to public content is not, by itself, malicious conduct. It is the intended interaction model of every social media platform. For a social media comment to constitute malicious conduct under the 258E statute, it must go beyond mere engagement with public content to something that is directed at causing harm — threatening content, obscene or sexually harassing content, or content that amounts to targeted abuse.

Comments that are “benign” — the word used by plaintiffs in 258E applications more often than perhaps any other — are definitionally not malicious. A plaintiff who acknowledges that the defendant’s social media conduct used benign wording has, in that characterization, conceded that the malice element is not satisfied. Under O’Brien, malice requires conduct without legal justification and with intent to harm. Benign wording communicates neither.

Approaching a Public Figure at a Public Event: Context Is Everything

A public event that a public figure has advertised to their audience creates a specific context for interactions. A television journalist who publicizes on social media that she will be running in the BAA 5K at the Boston Common, and who then encounters a viewer at that event who asks for a photograph and expresses condolences about a personal loss she also publicized on social media, is not the victim of harassment. She is the subject of the kind of viewer attention that her public role invites and that she has, through her public communications, actively encouraged.

The pre-race interaction described above does not satisfy the malice prong of the 258E standard for a straightforward reason: there is no conceivable intent to harm in asking for a photograph (which the public figure herself acknowledges is a common occurrence with viewers), asking about training, and expressing sympathy about a deceased pet. The post-race encounter — in which the same viewer shows the public figure a video he recorded of her finishing a public race, mentions he posted it to Instagram, and then respects her statement that she needs to leave — is similarly not malicious. Recording and posting a video of a public figure at a public event is constitutionally protected activity. Stopping when asked is the opposite of harassment.

The critical detail: the plaintiff thanked the defendant for his condolences. A plaintiff who thanks a person for their conduct in the same interaction she later characterizes as harassing faces an insurmountable credibility problem on the malice prong. Under O’Brien’s requirement that malicious conduct be without justification and with intent to harm, conduct that elicits genuine thanks from the alleged victim at the moment of the conduct cannot satisfy the standard.

An Email Through Proper Channels: Transparency and Compliance With Denial

A person who sends an email to a professional institution — identifying themselves by full name, making a specific request through the professional’s team rather than directly to the individual, and accepting the denial of that request without protest or further contact — has not engaged in malicious conduct under the 258E statute. The characteristics of malicious harassment are opacity, persistence, refusal to accept boundaries, and escalation. The conduct described above has the opposite characteristics: transparency, a single communication through appropriate channels, and complete acceptance of the institutional boundary set in response.

The absence of further contact is important. Under the three-act prong, harassment requires a pattern — three acts directed at causing harm. A single email, followed by nineteen days of complete silence, is not a pattern of harassment. It is a request that was denied and accepted. The denial and the acceptance are exactly how professional institutional channels are supposed to work.

The Public Figure Defense in 258E Cases

Massachusetts courts, following the SJC’s guidance in O’Brien, recognize that the 258E analysis must account for the plaintiff’s voluntary choice to live a public life and to cultivate public attention. A broadcast journalist who maintains a public social media presence, regularly shares personal information with her audience to create connection and relatability, and regularly appears at public events in a professional capacity has accepted, as part of her professional role, that members of her audience will engage with her in ways that go beyond what a private individual would experience.

This does not mean public figures have no protection under 258E. A public figure who is stalked, physically threatened, or subjected to a campaign of abuse and targeted harassment is entitled to the same protection as any other plaintiff. But the threshold for what constitutes the kind of willful and malicious conduct that would cause a reasonable person substantial emotional distress is calibrated to the plaintiff’s circumstances. A television journalist’s objectively reasonable response to an attentive viewer’s public-setting interactions is different from a private person’s objectively reasonable response to the same conduct from a stranger.

What Actually Crosses the Line

For clarity: the analysis above is not an argument that 258E orders should never issue. The statute exists for good reasons and addresses genuine harm. The conduct that clearly satisfies the three-act willful and malicious standard under O’Brien and Gassman includes:

• Repeated threatening communications — emails, texts, or messages that convey explicit or implied threats of physical harm
• Showing up at the plaintiff’s home or workplace uninvited after being told to stop contact
• Targeted online harassment campaigns — content specifically designed to humiliate, threaten, or cause reputational harm to the plaintiff personally
• Following or surveilling the plaintiff in physical space over time
• Contacting the plaintiff’s family members, friends, or employer in a manner designed to cause harm to the plaintiff’s relationships
• Any of the enumerated criminal offenses under the single-act prong: assault, assault and battery, criminal harassment under G.L. c. 265, § 43A, or stalking under G.L. c. 265, § 43

The distinguishing feature of all of these is the combination of intent to harm, absence of legal justification, and a pattern of escalating or persisting conduct that a reasonable person would find genuinely threatening or deeply distressing. Viewer attention, however intense or unwelcome, is different from targeted harassment.

If You Have Been Served With a 258E Order

If you have been served with a 258E harassment prevention order application and your first court date is approaching, you have the right to appear at the extension hearing and contest the order. The hearing is not a criminal proceeding — there is no right to a court-appointed attorney — but you have the right to retain counsel and to present evidence challenging the plaintiff’s account.

The most important things to do immediately after service:

• Do not contact the plaintiff in any way — not directly, not through a mutual friend, not on social media. The order takes effect on service. Any contact is a criminal violation of the order under G.L. c. 258E, § 9, carrying up to 2.5 years in a House of Correction
• Preserve all evidence: every social media communication, every email, every text, every record of the interactions the plaintiff has characterized as harassment
• Write down your account of every alleged interaction in as much factual detail as possible, while the events are fresh
• Retain counsel before the extension hearing date

See: Massachusetts 258E Harassment Prevention Orders — Defense and Plaintiff Representation, Defending 209A and 258E Violations in Massachusetts, and Massachusetts 209A Abuse Prevention Orders.

Key Takeaways

• Under G.L. c. 258E, harassment requires three or more acts, each of which must be willful, malicious, and would cause a reasonable person substantial emotional distress. All three elements must be satisfied for each act
• Malice under O’Brien v. Borowski (461 Mass. 415, 2012) requires conduct without legal justification and with intent to harm. Unwelcomeness, even genuine unwelcomeness, is not malice
• The substantial emotional distress standard under Gassman v. Reason (90 Mass. App. Ct. 569, 2016) is objective — what a reasonable person in the plaintiff’s position would experience. A public figure’s reasonable response to viewer attention is calibrated to her public role
• Prospective fear of future contact is insufficient under Seney v. Morhy (467 Mass. 58, 2014). The statute addresses past conduct, not anticipated future conduct
• A plaintiff who characterizes a defendant’s conduct as “benign” in her own affidavit has conceded the malice prong. A plaintiff who thanks the defendant for his conduct at the moment of the interaction has the same problem
• Transparency, single-communication requests through proper channels, and acceptance of denials are the opposite of harassment

Contact Serpa Law Office at 617.936.0201 for a free consultation on a 258E matter. Boston office: 20 Park Plaza #400A. Quincy office: 500 Victory Rd., Suite 400A.