Massachusetts Libel and Defamation Law for Private Individuals

The 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.

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