New York Times
recently reported on Bettina Wulff, the former first lady of Germany who
filed a libel lawsuit against Google in a Hamburg court. She claims she
is being defamed by Google's autocomplete function which pops up "Bettina
Wulff prostitute" or "Bettina Wulff escort". Google countered
that it is not to blame, as it was the curiosity of other Google users,
and not the assessment of the company that causes the offending terms
to pop up. Under the circumstances it seems that Google has an appropriate
defense to the libel lawsuit, at least under Massachusetts's law (disregarding
the fact that Bettina Wulff is a public figure).
Massachusetts's libel law was reinterpreted by the First Circuit in
the 2009 case
Noonan v. Staples, Inc.
The court ruled that truth will not be a defense to a libel lawsuit when
the statements were published with "actual malice" or "ill
will" toward the defamed individual. The
actual malice intent can be determined from the context of the statement that gave rise
to a libel lawsuit.
Pursuant to MGL c.231, s.92 in a libel case, "truth shall be a justification
unless actual malice is proved." The Supreme Judicial Court in
Shaari v. Harvard Student Agencies
, (1998) ruled this statute unconstitutional as it applies to matters of
public concern, but did not address its
application to private citizens. The court followed the line of cases beginning with the landmark 1964
Supreme Court decision in
New York Times v. Sullivan that required there to be malice in a defamation claim by a public person.
The decision in
Noonan has far reaching consequences in the context of the Internet, the rise
of blogs and social media because regardless of whether a statement is
true, you can be held liable if you made it with actual malice or
ill will toward the plaintiff. As a result, bloggers and product reviewing posts expressing opinions
and experiences on the Internet may be liable for defamation even if the
statements made were true. The plaintiff could point to other blogs and
statements to show a malicious intent as gleaned from the context of the
postings or web content.