The Minc Law Guide to Massachusetts Defamation Law

What is Defamation? Massachusetts’ Defamation Definition

“Defamation” is a comprehensive legal term and definition for the written or spoken communication/publication of a false fact to a third-party, which ultimately causes harm or injury to another person’s reputation. As the United States is a Common Law legal jurisdiction (along with Canada, United Kingdom, and Australia), it classifies defamation as a civil injury or wrong, meaning it is labelled as a “tort” and gives rise to damages, or reimbursement for the damage or injury suffered. Defamation may sometimes be referred to as the “tort of defamation” or “defamation of character.”

Specifically, defamation of character (aka the tort of defamation) may be classified into two core types: libel and slander. It’s extremely important you acquaint yourself with the below definitions, as doing so could have a substantial impact on your bringing of a defamation claim. Also, keep in mind that both have their own differing legal requirements and formalities.

• Libel: the written communication of a false statement of fact to a third-party or publication, which ultimately causes harm or injury to another person’s reputation. Libel may also be published, meaning it can take form in that of a video, photograph, or other media.
• Slander: the spoken communication of a false statement of fact to a third-party, which ultimately causes harm or injury to another person’s reputation.

In our tenure as defamation lawyers, it has become clear that the general American public commonly mixes up the two definitions, and often incorrectly opts to use “slander” as a catch-all term for defamation. The reality of the defamation landscape in the United States (and the world) is that most defamation is taking place in written or published form (libel), as the Internet has given rise to infinitesimal opportunities to publish (anonymously) content and comments online.

As we mentioned above, familiarizing yourself with the differences between the two (and the form in which they are conveyed) is integral to bringing an effective and timely defamation claim. Failing to understand the differences between libel and slander could result in a late commencement of your action or the improper following of important legal formalities.

For example, as slander deals with the spoken communication of a false assertion of fact, the preservation of evidence is much harder and may be considered “fleeting” – ultimately making it difficult to prove in court. As such, most states tend to enforce a shorter statute of limitations for slander claims.

To help in the remembrance of the differences between slander and libel, let’s get back to our Latin roots. “Libellus” is the Latin word for “small book” or “booklet,” so if you encounter a defamatory and false statement which comes in the form of text or online, think of it as being published in a small book (booklet) or “libellus.”

Defamation also can go by many names, and may also be referred to as:

• Vilification,
• Traducement,
• Calumny,
• Character assassination, and
• Disparagement.

Keep in mind that disparagement is actually a misnomer, and does not cover defamation. It is an incorrect classification, and specifically deals with a false statement which ultimately causes harm to a business or person’s financial or proprietary rights – rather than their reputation. It is a distinct tort in itself, and may be referred to as the “tort of commercial/business disparagement.” If you’ve like to read up further on its definition, how it differs from defamation, the elements required for a successful claim, and more, head on over to our comprehensive blog post, “What is Business Disparagement?”.

So, what are some popular names for persons who publish or communicate a defamatory statement?

• Libelers: persons who publish via written or other media, a false statement of fact, which is viewed by a third-party.
• Slanderers: persons who orally communicate and publish a false statement of fact to a third-party.
• Defamers: the overarching name for persons who communicate or publish a false statement of fact to a third-party.
• Famacide: a rather archaic term for persons who commit defamation of character. Famacide literally means “to destroy another person’s reputation.”

Now that we’ve walked you through the basic principles at the heart of U.S. defamation and libel laws, let’s turn to how Massachusetts defines defamation of character, along with their requisite elements that must be proved in order for a successful libel or slander claim.

For the purposes of this blog post Mass. Ann. Laws ch., §(Lexis 2018) will be shortened to Mass. Ann. Laws ch., §.

Massachusetts’ Definition of Defamation

Let’s take a look at Massachusetts’ defamation definition.

Massachusetts defamation law defines defamation as a term for a legal claim arising from harm to a person’s reputation, which is caused by a false statement of fact communicated to a third-party without privilege. Defamation includes both libel (written defamation) and slander (spoken defamation).

In Massachusetts, defamation generally requires a plaintiff to show that the false statement was “capable of damaging his or her reputation in the community and either caused economic loss or is actionable without proof of economic loss.” Furthermore, Massachusetts courts have noted, “Defamation is the publication of material by one without a privilege to do so which ridicules or treats the plaintiff with contempt.”

In order for Massachusetts defamation plaintiffs to succeed in their libel or slander claim, they must prove the following five (5) elements:

• A defamatory statement
• About the plaintiff
• Published without privilege to a third-party
• With fault of at least negligence on the part of the defendant
• The statement either caused the plaintiff economic loss or was of the type that is actionable without proof of economic loss (defamation per se).

Expanding on the second element further – the statement must be about the plaintiff – a defamatory statement in question must be “of and concerning the individual plaintiff.” “A defamation plaintiff could prove that the defendant’s words were ‘of and concerning’ him by showing ‘either that the defendant intended its words to refer to the plaintiff and that they were so understood, or that the defendant’s words reasonably could be interpreted to refer to the plaintiff and that the defendant was negligent in publishing theme in such a way that they could be so understood.’”

The reference to the plaintiff must be clear enough for a third party to identify the plaintiff and if the plaintiff is a member of the group, the plaintiff must be individually identifiable.

• In a 2007 Massachusetts case, male students were caught having inappropriate relations with a female student. Possibly defamatory statements were published about the incident, but were not of and concerning the student in question because there were several students mentioned and a reasonable person would read the article to understand that the student may not have participated in the incident. The student was not mentioned by name and was grouped together generally with other students who were involved.
• Accusing a few specific members of religious organization is not of and concerning the whole organization.

Let’s turn to three examples and cases explaining defamation in Massachusetts.

3 Massachusetts Defamation Cases

• In a 2017 case, a Massachusetts Appellate court affirmed that a local business owner’s false statements published in a variety of media outlets, mass emails, and on the Internet suggesting the plaintiff used his position as a town’s local selectman to advance his family’s interests at the town’s expense were defamatory. Ultimately, they upheld a $2.1 million defamation award for damage to reputation. The jury correctly concluded that the defendant issued statements recklessly and with a high degree of awareness of their probable falsity.
• An employee’s libel claim that an executive’s mass email to other employees accusing an employee of padding expense reports was defamatory and survived summary judgment because there was evidence of actual malice under Mass. Gen. Laws ch. 231, § 92 even though the email contained true statements.
• False attribution can be defamatory according to a 1982 Massachusetts case. A newspaper reporter falsely attributed a racist statement to someone, which implied that person was racist.

In this comprehensive blog post to Massachusetts defamation law, we’re going to take you through all five (5) requisite elements for a successful defamation claim, along with the various types of defamation plaintiffs in the United States and Massachusetts, common defenses, and much much more.

And, if you’re wondering how Massachusetts’ defamation definition stacks up to other U.S. states, we strongly recommend heading over to our Complete Guide to US Online Defamation Law.

U.S. Defamation Law Tip: As the U.S. has a longstanding history of upholding the First Amendment and free speech, it is generally considered to be a pro-defendant defamation jurisdiction. On the flipside of the coin are other Common Law jurisdictions (think Canada, Australia, and the U.K.) and European countries which are typically considered pro-plaintiff defamation jurisdictions.

Are you a resident of Massachusetts and have been the victim of false and malicious online attacks? Contact the internet defamation removal attorneys of Minc Law now! At Minc Law, we’re here to fight for your reputation. It’s time to take back your online presence and craft your own narrative.

In our tenure as online defamation removal attorneys, we boast a nearly 100% online defamation removal and takedown rate, have secured the swift and effective removal of over 25,000 pieces of defamatory online content, and litigated in over 19 states and 3 countries. And, we charge a flat, reasonable fee.

United States defamation law is highly complex and changing, so if you’ve been libeled online, we strongly urge you to contact an experienced defamation removal attorney to assist in the exploration of your removal and legal options.

Contact us today to schedule your free, initial no-obligation consultation by calling us at (216) 373-7706, or by filling out our contact form online.

The online abuse stops today!

Now, let’s take a look at Massachusetts’ defamation pleading standard for both slander and libel lawsuits.

Massachusetts’ Defamation Pleading Standard

Before diving right in to Massachusetts’ defamation pleading standard, let’s first understand why our judicial system utilizes pleadings and what purpose they serve. We bet there’s a good chance you’ve heard some of these basic legal terms used before, whether it from watching your favorite legal drama on television or from one of your favorite mystery and crime novels.

First, what are pleadings?

At their simplest, pleadings are the required formal written documents and statements that initiate a legal action. Pleadings are filed with the court, and generally outline a party’s:

• Statement of facts
• Issues
• Allegations and assertions
• Various defenses

As you can likely gather, pleadings are first initiated and set forth by the plaintiff – think about it, why would a defendant choose to bring a lawsuit against his or her self? They wouldn’t. After a plaintiff files their initial documents and pleadings, the defendant is then given a chance to respond and answer to the asserted claims, facts, and accusations.

What are the most commonly used pleadings?

Below are just some of the most commonly filed pleadings in the United States and Massachusetts:

• Complaint: the initial formal document filed by the plaintiff, outlining their fundamental claims, accusations, arguments, and facts. Complaints also contain a “prayer for relief,” or statement of the damages sought.
• Answer: the defendant’s response (or answer) to the plaintiff’s formal complaint, where they address the facts set forth, claims, accusations, and other arguments proffered by the plaintiff(s). A defendant may also raise any relied upon defenses in their answer.
• Reply: the plaintiff’s response to new claims, arguments, facts, or accusations raised by the defendant in their answer. A reply is simply the plaintiff’s response to the defendant’s answer.
• Counterclaim: sometimes a defendant will have a separate legal claim against the plaintiff. Cue a counterclaim, which may be filed in order to offset the plaintiff’s initial complaint and claims.

As the U.S. has one of the most active and clogged legal systems in the world, it’s extremely important to keep in mind that most states will differ in their defamation pleading requirements and formalities.

For example, one state may require a libel plaintiff to bring their defamation lawsuit within a shorter period of time, while another state may have a more relaxed timeframe for when a plaintiff must initiate their action. Additionally, some states may require a defamation plaintiff to plead their case with a high degree of specificity, setting forth the exact language used in the defamatory statement, while other statements may only require a defamation plaintiff to provide a short summary of the statement(s).

If you’re unfamiliar with your respective state’s defamation pleading standards and other legal requirements, it’s imperative you reach out to an experienced internet defamation lawyer today!

So, now that we’ve covered what pleadings are, what pleading standard does the state of Massachusetts apply?

Massachusetts has no special pleading requirements for defamation.

However, to state a claim for defamation, the plaintiff must allege both the falsity of the statement(s) in question and the defendant’s negligence.

Furthermore, the plaintiff must allege how the defamatory statement was published, as it is not enough to allege that the defamatory statement “became known.”

Now, let’s turn to several categories of statements that the United States and Massachusetts have both determined to be so inherently defamatory and inflammatory, that a libel or slander plaintiff need not actually prove they suffered damage or injury as a result of a defamatory statement. Such statements are referred to as “defamation per se,” or “libel per se” in cases of written defamation, and “slander per se” in cases of spoken defamation.

Defamation Per Se: 4 Inherently Defamatory Statements

As noted above, defamation per se is the legal doctrine that certain statements are so inherently defamatory and inflammatory, that a defamation plaintiff need not actually prove they suffered harm or damage as a result of the statement in question.

Massachusetts recognizes that certain types of statements, if false, are so egregious and harmful that they will always be considered defamatory, and are assumed to be harmful to a person’s reputation. Plaintiffs do not need to plead or prove economic losses, and the statements (as we’ve hammered home) are referred to as ‘per se’ statements.

Massachusetts courts recognize defamation as ‘per se’ when a written statement “could damage the plaintiff’s reputation in the community.”. Libel per se in this context, ecompasses statements that charge the plaintiff with a crime, that allege the plaintiff has certain diseases, or that may prejudice the plaintiff’s profession or business.

Massachusetts also recognizes defamation per se in cases involving slander, rather than libel. However, this is unlikely to arise in an Internet-based defamation action because online defamation almost always involved libel law.

To constitute defamation per se in Massachusetts, the alleged defamatory statement “must fit within one of the four classes:

• Statements constituting libel
• Statements charging the plaintiff with a crime
• Statements alleging that the plaintiff has certain diseases
• Statements prejudicing the plaintiff’s business or profession.”

Let’s take a look at four cases examples where defamation per se was ruled on in Massachusetts.

4 Massachusetts Defamation Per Se Cases

• Unethical behavior: An email sent about a pavement company was held to be per se defamation because it attacked the person’s business by claiming that they wouldn’t do business with the company for ethical reasons. Furthermore, the email implied that they had facts about unethical behavior on the part of the paving company. Pavement Restoration Eng’g, Inc. v. Patterson Indus. Ltd., No. 04-1632, 2007 Mass. Super. LEXIS 536 (Super. Ct. Mass. Nov. 27, 2007).
• Doctor’s health: Statements about a doctor’s health and the fact that she was “dying of breast cancer” were considered per se defamation in Massachusetts because they implied that the doctor would not be able to do her job.
• Workplace argument: A heated workplace argument was not considered defamation per se in Massachusetts because it could be understood that the argument was not meant to imply that the plaintiff was actually bad at her job.
• Prospective employer: A typist’s former employer made allegedly false negative comments about the typist to a prospective employer. While the statements were not held to be per se defamation, the court did hold that disparaging someone’s vocational reputation was particularly likely to give rise to defamation.

Going hand in hand with defamation per se is the award of presumed damages for a plaintiff, as the plaintiff need not actually prove there was damage. We’ll take you through the various damages associated with defamation per se in the United States and Massachusetts in Section 5.

Now, let’s turn to the flipside of the coin and take a look at the legal principle of defamation per quod (the complete opposite of defamation per se).

Defamation Per Quod & Extrinsic Evidence

If a false statement does not fall under one of the above four categories for a defamation per se claim, then it will likely be classified as a “per quod statement.” Defamation per quod is the complete opposite of defamation per se, and requires a defamation plaintiff to provide supporting and extrinsic evidence of the defamatory nature of a statement(s).

In Massachusetts, defamation per quod is contextual. Massachusetts courts note that the distinction is already gone in libel cases, and that it will disappear in slander cases over time as well.

Note that per quod has not been used in Massachusetts since the 1970s. Butler v. Southern, C.A. Case No. 92-0344, slip op. at 10 n.6 (Middlesex Cty. Super. Ct. 1995) (McHugh, J.).

And, while defamation per se is associated with presumed damages, it’s important to note that defamation per quod actions will require the plaintiff to prove they suffered “special damages,” a topic which we will also discuss in Section 5.

What is Defamation By Implication?

Sometimes libel and slander is not always as straightforward as one would think, as it’s not always explicit and clear. Sometimes, defamatory statements may be hidden or cloaked in everyday speech and language, making for a difficult defamation landscape to navigate. Defamation by implication is the cloaking or disguising of defamatory speech in ordinary speech, and will give rise to an actionable claim.

Although Massachusetts does not have any notable cases concerning defamation by implication, it’s still an important legal principle to keep in mind when confronting defamation.

Online Defamation Removal Tip: Before bringing a claim for online defamation and libel, it’s important to document and preserve as much evidence as possible. Make sure to screenshot any offending material and save it to a USB. We also strongly recommend having a trusted friend or family member help with the documentation process, as it will help refute any claims by the opposing party that you tampered with evidence.

If you’re still confused about what exactly constitutes libel and slander, and have been the victim of malicious online attacks and comments, contact the defamation removal lawyers of Minc Law today!

Contact us today to schedule your free, initial no-obligation defamation consultation by calling us at (216) 373-7706 or by filling out our contact form online.

Let’s take back your reputation today!

Important Massachusetts Defamation Lawsuit Formalities & Requirements

The United States has one of the most complex and nuanced legal systems in the world, making it overwhelming and daunting to navigate by oneself. Both the United States and Massachusetts have countless hurdles for a defamation plaintiff to tackle in order to not only bring a libel or slander claim, but succeed. In this section, we’re going to take you through core libel and slander formalities and requirements that you should be aware of before bringing your claim.

Specifically, we’re going to walk you through:

• Massachusetts’ courts and their reach over out-of-state defamation defendants
• Where Massachusetts defamation plaintiffs may sue for defamation
• The statute of limitations for bringing a defamation claim
• Several explanatory and key cases

Do Massachusetts Courts Have Personal Jurisdiction Over Out-of-State Defendants?

The simple answer? Yes. However, there’s several caveats and conditions that first must be met for a Massachusetts court to have personal jurisdiction over an out-of-state defamation defendant.

The appellate level Massachusetts state courts have not yet ruled on the circumstances under which emails, message board postings, or website operation would subject an out-of-state defamation defendant to jurisdiction in Massachusetts. However, two superior court cases have held that publishing defamatory statements that identify (by name) individuals and businesses residing in Massachusetts on public websites are sufficiently targeted to establish personal jurisdiction.

Furthermore, the Massachusetts federal district court has found personal jurisdiction over out-of-state defendants:

• Who post material online that multiple Massachusetts residents view
• That defames plaintiffs with a Massachusetts domicile
• Such domicile was known to the defendants

In the context of a defamation claim, ‘purposeful availment’ is determined by where the effects of the defamatory statements are intended to be felt.

Merely making the statement in Massachusetts and not injuring the victim in Massachusetts or intending the victim to be injured in Massachusetts will not subject the speaker to liability.

Personal Jurisdiction & Due Process

“In the First circuit, courts employ a three-part test to determine whether the assumption of personal jurisdiction over a defendant comports with due process:

• The claim(s) must directly arise out of, or relate to, the defendant’s forum-state activities
• The defendant’s in-state contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state’s laws and making the defendant’s involuntary presence before the state’s courts foreseeable
• The exercise of jurisdiction must, in light of the Gestalt factors, be reasonable.” adopted by a state court in Edozien v. XS Micro, LLC, 32 Mass. L. Rep. 21 (2014)

For reference, the Gestalt factors are:

• The defendant’s burden of appearing
• The forum state’s interest in adjudicating the dispute
• The plaintiff’s interest in obtaining convenient and effective relief
• The judicial system’s interest in obtaining the most effective resolution of the controversy
• The common interests of all sovereigns in promoting substantive social policies.

Let’s turn to five case examples dealing with Massachusetts courts and their jurisdiction over out-of-state defamation defendants:

• Navy doctor: A Navy doctor made defamatory statements in Massachusetts, but was not subject to liability in Massachusetts because the harms were not felt in Massachusetts. Arthur v. Doe, 32 Mass. L. Rep. 296 (2014).
• Divorce proceedings: During divorce proceedings, a private investigators posted defamatory things about the husband on the Internet. The private investigator was in Florida and the husband was in Massachusetts. Ultimately, the defendant’s Internet postings intended to cause harm in Massachusetts both to the individual plaintiffs and their business, which was sufficient to establish personal jurisdiction over the defendant – even though the defendant had never lived in or otherwise previously come to Massachusetts. Taylor v. Taylor, 31 Mass. L. Rep. 526 (2013).
• Canadian ex-girlfriend: A Massachusetts man’s Canadian ex-girlfriend was posting defamatory things about him on Facebook. The post was only seen by a few Facebook friends and the girlfriend took no steps to target Massachusetts. Furthermore, the court opined that it would be very burdensome on the girlfriend to litigate in Massachusetts, thus the court held there could be no personal jurisdiction over the girlfriend.
• Animal welfare group: An animal welfare group from Massachusetts were defamed over the Internet and social media by persons from around the country. The court held that the plaintiff had a weak showing in the first two prongs of the personal jurisdiction test and that informed their “Gestalt analysis,” the court held that it would be unfair for the court to hold personal jurisdiction over the defendants.
• Professional reputation: The superior court ruled that a defendant’s website postings, telephone calls, and emails targeting the plaintiff were sufficiently related to the injuries of damage to professional reputation and psychosocial injuries to hold personal jurisdiction over the defendant. Edozien v. XS Micro, LLC, CV 2013-05066-F, 2014 Mass. Super. LEXIS 30 (Mass. uper. Mar. 7, 2014).

Now, let’s take a look at Massachusetts’ Long-arm statute, which provides for jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s:

• Transacting any business in this Commonwealth
• Contracting to supply services or things in this Commonwealth
• Causing tortious injury by an act or omission in this Commonwealth
• Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealthy if he regularly does or solicits business, or engages in any other persistent course of conduct or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth
• Having an interest in, using or possessing real property in this Commonwealth
• Contracting to insure any person, property or risk located within this Commonwealth at the time of contracting
• Maintaining a domicile in this Commonwealth while a party to a personal or martial relationship out of which arises a claim for divorce, alimony, property settlement, parentage of a child, child support or child custody; or the commission of any act giving rise to such a claim
• Having been subject to the exercise of personal jurisdiction of a court of the Commonwealth which has resulted in an order of alimony, custody, child support or property settlement, notwithstanding the subsequent departure of one of the original parties from the Commonwealth, if the action involves modification of such order or orders and the moving party resides in the Commonwealth, or if the action involves enforcement of such order notwithstanding the domicile of the moving party.

So, where can Massachusetts defamation plaintiffs sue persons for defamation?

Venue: Where Can Massachusetts Defamation Plaintiffs Sue?

Under Massachusetts law, for transitory actions (tort actions being part of transitory actions) the proper venue is in the county where either party lives, or where they have their usual place of business (in Massachusetts).

And, if neither party lives in Massachusetts, then any county will be appropriate.

United States Libel Law Tip: Libel tourism is a popular term used to describe plaintiffs who “forum shop” for favorable libel jurisdictions. To combat such, the United States passed the SPEECH Act in 2010, which makes foreign libel judgements unenforceable unless they are compliant with principles outlined in the Constitution’s First Amendment.

As we emphasized in Section 1, it’s extremely important for defamation plaintiffs to correctly identify the type of defamation they are subject to, as it could significantly impact their rights and remedies under United States defamation law. Most commonly, incorrectly identifying the form in which the defamation was conveyed will have an impact on the timeframe for bringing a claim – also known as the statute of limitations.

Let’s now take a look at the Massachusetts defamation of character statute of limitations and how it stacks up to other U.S. states’.

Massachusetts Defamation Statute of Limitations

Before we get into Massachusetts’ defamation statute of limitations, let’s first understand the fundamental principles driving its existence and how it’s lessening the caseload of an already clogged judicial system.

Video: What is the Statute of Limitations for Defamation in the U.S.?

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For starters, a statute of limitations is a time limiting mechanism and restraint which is placed on legal actions and a party’s ability to bring them. Should a plaintiff fail to initiate their legal action within a specified timeframe, then they may risk not being able to bring their claim altogether, or have it subsequently dismissed (or penalized).

So, what are the fundamental principles driving our statutes of limitations?

• Reasonable diligence: As noted above, the U.S. legal system is extremely busy and clogged, making for a slow and arduous litigation process. Having a statute of limitations in place helps prevent frivolous actions from being filed years later, and requires parties to bring their claim with reasonable diligence.
• Preservation of evidence: It’s not unheard of for evidence to be destroyed or lost. Oftentimes, time is of the essence when bringing a claim, so it’s in both parties best interest to have access to necessary evidence and documentation. A statute of limitations helps cut down the chances that either party may have destroyed or lost important evidence.
• Elimination of more “cruelty than justice”: At its simplest, a statute of limitations exists to ultimately eliminate more cruelty than justice, by providing defendants and parties with proper notice of a legal or pending action. Doing so provides everyone sufficient time to prepare their case and enter the litigation arena on equal footing.

So, what is Massachusetts’ statute of limitations for defamation actions?

The statute of limitations for bringing a defamation claim is three (3) years in Massachusetts.

But, what date does the statute of limitations start to toll (run)?

The statute of limitation for defamation claims will begin to toll (start) on the first day of publication, as long as it is widely available. Note that this will apply to newspapers, but seems unlikely in our interpretation that it would also apply to online publications.

The discovery rule only applies to inherently unknowable causes of action. Specifically, the discovery rules dictate that the statute of limitations will only start after the would-be plaintiff discovered the injury resulting from the defamatory material, or after it would have become known through the exercise of reasonable diligence.

For the statute of limitations to start accruing in Massachusetts, a plaintiff must meet two elements. A plaintiff must have knowledge or sufficient notice of two related facts:

• That he was harmed
• That his harm was caused by the defendant’s conduct

Note that Massachusetts, like several other states, has seen a court interpret the second prong to require the plaintiff to know the identity of the person who caused the injury.

Affecting a state’s statute of limitations is a commonly enforced legal principle known as the ‘single publication rule’. Let’s take a look at whether Massachusetts has adopted and enforces the single publication rule, and see how it exactly affects the statute of limitations.

The Single Publication Rule: Does Massachusetts Enforce It?

Similar to a statute of limitations, the single publication rule is also a legal restraint and limiting mechanism on a plaintiff’s ability to bring defamation claims. Specifically, the single publication rule limits a defamation plaintiff’s right to recovery, and only allows them to bring a single lawsuit for a defamatory publication or communication. Our already hectic legal system would be further weighed down should a plaintiff be able to keep bringing claim after claim for the same publication or communication – even after it was properly litigated.

But for extenuating circumstances, a defamation plaintiff may not bring an action to litigate on the same matter again.

Massachusetts has adopted the single publication rule. When something is published repeatedly or is continuously published (such as an online publication), the clock on the statute of limitations will start ticking when the defamatory material was first published. (Applying the single publication rule to an internet posting).

It’s extremely important to understand that once a communication or publication has been made, a defamation plaintiff will be relegated to a single action for that publication or communication made, and not subsequent copies or publications (unless it is materially altered).

So, how does Massachusetts’ defamation statute of limitations compare to other states?

Understanding your state’s respective defamation statute of limitations is essential for lodging and effective (and successful) libel or slander action. Don’t risk being prevented from bringing your defamation claim altogether because you failed to acquaint yourself with your state’s time frame for bringing a claim (or because you confused the definitions of libel and slander).

If you’re a resident of Massachusetts, or any other U.S. state, and have been the victim of malicious and false online attacks (namely online defamation), contact the internet defamation removal lawyers of Minc Law now!

In our storied tenure as nationally recognized defamation attorneys, we’ve secured the removal of over 25,000 pieces of defamatory online content and litigated in over 19 states and 3 countries. Furthermore, we boast a nearly 100% online defamation removal rate, and all for a flat, reasonable fee. Just know that when working with the defamation lawyers of Minc Law, you’re in good hands!

Reach out to us today to schedule your free, initial no-obligation consultation by calling us at (216) 373-7706, or by filling out our contact form online.

Let’s put an end to the online abuse and attacks today!

Public vs. Private Defamation Plaintiffs: Which One Are You?

One of the most important factors determining a libel and slander plaintiff’s rights and remedies under U.S. defamation law is their status in society and the community. We can’t stress enough how important it is to understand the different types of defamation plaintiffs that exist in our legal arena, as their burdens of proof they have to meet to succeed in their claim differ significantly. For example, U.S. defamation laws generally recognize two broad categories of libel and slander plaintiffs; the private plaintiff and figure, and the public plaintiff and figure.

In this section, we’re going to walk you through the first few defamation cases (and history) which ultimately shaped present day defamation law plaintiffs as we know it. And, we think you might just be surprised to find out what type of defamation plaintiff you are.

So, let’s get started. Why do U.S. courts differentiate between private and public defamation plaintiffs?

At the very core of United States defamation law and the differentiation between both private and public plaintiffs is the landmark case of New York Times Co. v. Sullivan. In Sullivan, the Supreme Court noted that it was integral when determining a plaintiff’s legal rights and remedies under defamation law, to impose separate burdens of proof on plaintiffs depending on their status in the community and society.

But, why did the U.S. Supreme Court think differentiating between the two was so important?

Simple. “Uninhibited debate of public issues.” The Supreme Court ruled that distinguishing between the two was at the very heart of furthering “uninhibited debate of public issues,” and strengthening our democracy. After all, our democracy centers around the right to free speech, open debate, and public comment. Should we start censoring persons from discussing public figures and those of prominence in today’s society, not only would our free speech be censored, but the general public would become less informed as well.

Additionally, public persons and figures who have voluntarily or involuntarily availed themselves to the public eye have accepted various accompanying effects, and as such, they should have a stricter burden of proof to meet when bringing a libel or slander claim.

Below are the two broad categories of defamation plaintiffs in the United States and their respective burdens of proof that they must meet in order to succeed in their defamation action:

• Private Plaintiffs/Persons: There’s a good chance if you’re reading this that you fall under the category of a private plaintiff. Private persons and plaintiffs are persons who have not voluntarily or involuntarily availed themselves to the public light, and as such deserve a high degree of privacy. They also deserve not to be talked about or commented on in a public manner. Think about it, why should someone who has never thrust themselves to the forefront of a public controversy or event suddenly be lambasted or criticized by the news media or general public? As such, private plaintiffs have a less strict burden of proof to meet when bringing a defamation claim. Private plaintiffs/persons must prove a defamation defendant communicated or published a defamatory statement with that of ordinary negligence – or outside the bounds of how a normal person in their shoes would act in a similar situation.
• Public Plaintiffs/Persons: Think of everyone you’ve ever watched on television – celebrities, sports athletes, and politicians – all of these persons are public figures, as they have either voluntarily or involuntarily availed themselves to public comment, debate, or criticism. These are persons that are generally at the forefront of shaping society, and should be discussed openly. Public plaintiffs and persons have a much stricter burden when bringing a libel or slander claim, and must prove a defamation defendant communicated or published a defamatory statement with actual malice or reckless disregard.

As we mentioned above, private and public plaintiffs/figures are just two broad categories of defamation plaintiffs in the United States. For nonpublic figures (private persons and plaintiffs), the fault requirement is negligence. For public figures, the standard is actual malice.

Most states go a step further and break both categories down into subcategories. Massachusetts is no different, and recognizes four types of defamation plaintiffs:

• Private Plaintiffs/Persons
• Public Officials
• Public Figures
• Limited-Purpose Public Figures

Before getting into things, let’s define what actual malice is – an important legal term which will be used frequently in this next section.

What is Actual Malice?

Actual malice requires knowledge that the statement in question is false, or reckless disregard for whether the statement was false or not.

“Reckless disregard” requires proof, not of mere negligence, but that the author ‘in fact entertained serious doubts as to the truth of his publication.’

Finally, to establish knowledge of falsity or reckless disregard of the truth, the plaintiff “must establish his proof, not merely by the fair preponderance of the evidence, but by ‘clear and convincing proof.’”

• A reporter not interviewing witnesses that would contradict the “alleged facts” and throw away his notebook to cover up the fact that he knew his article was inaccurate was enough for a jury to infer actual malice.
• Purposefully bringing up the affair of an adverse party during a hearing in order to humiliate and divert attention was considered sufficient to infer actual malice.

To assist in your understanding of the four (or five) types of defamation plaintiffs recognized in Massachusetts, below is a comprehensive chart and table comparing them.

Massachusetts also does seem to recognize a quasi-fifth category of defamation plaintiffs – the “involuntary public figure.”

Also, note that if you’ve been the victim of false and defamatory online attacks, and are unsure of what type of defamation plaintiff category you fall under, reach out to an experienced defamation removal attorney immediately. Doing so will not only eliminate headache, but will prevent the possibility of forfeiting your claim due to incorrect filing, language, and more.

It bears repeating that public figures, public officials, and limited-purpose public figures must all show that the defendant acted with actual malice when they published or communicated defamatory statements.

Let’s also take a look at the test for public officials which is utilized by Massachusetts courts.

Test for Public Officials in Massachusetts

“Typically, courts approach the public official analysis as if it were a three-legged stool, taking into account:

• The extent to which the inherent attributes of a position define it as one of influence over issues of public importance
• The position’s special access to the media as a means of self-help
• The risk of diminished privacy assumed upon taking the position.”

“Other relevant considerations include the employee’s remuneration and duties, his or her participation in decisions on public issues, the impact of the government position on everyday life, the potential for social harm from abuse of the government position, and the employee’s access to the press.”

Let’s turn to the standard employed by Massachusetts courts to determine whether someone is a general public figure or limited-purpose public figure.

Public Figures vs. Limited-Purpose Public Figures

The Massachusetts Supreme Judicial Court has laid out a flexible standard for determining whether someone is a general public figure or limited-purpose public figure.

The court gave examples of persons that would be a general public figure – someone who is a household name or is nationally known. Furthermore, the court looked at, to what degree a person was a public figure, and drew the line, acknowledging it should be determined on a case by case basis whether a person is a limited-purpose public figure or not.

Ultimately, the status is determined based on the community context and if the communication was addressed to a particular community. A limited-purpose public figure is someone who intentionally seeks the spotlight in some specific area with the intent to impact the resolution.

Let’s take a look at a fringe example:

• Boston Marathon Bombing: Alharbi sued the talk show host Glenn Beck for defamation. Alharbi was a suspect in the Boston Marathon bombing. After he was cleared by the police, Beck made defamatory statements about Alharbi, claiming he was involved in the bombing and saying he was the “money man.” The court ultimately held that Alharbi was not a limited-purpose public figure, nor was he an involuntary public figure because a reasonable person would not be able to predict that going to the marathon was assuming the risk of publicity.

Online Defamation Removal Fact: With the rise of the Internet and technology, online defamation is able to spread quicker than a wildfire. We strongly recommend creating a Google Alerts account in order to monitor your online reputation and brand. Remember, staying proactive is the key when addressing online defamation.

Continuing on with the notion that defamation law should be distinguishing between both private and public plaintiffs for the furtherance of uninhibited debate and an informed society, let’s turn to issues of private and public concern. Both require defamation plaintiffs to meet a certain burden of proof in order to succeed in one’s action.

Massachusetts & Issues of Private & Public Concern

Just as United States defamation law makes sure to distinguish between both private and public plaintiffs/persons for the furtherance of democratic debate and an informed society, it also distinguishes between issues of private and public concern. Clearly, there are certain issues and subjects that should be able to be discussed freely in our society, while others should be approached with caution and tact. Ultimately, should our legal system fail to distinguish between the two, the very democratic institutions and mechanisms which drive society would falter and fail to evolve, and private persons and topics would be ripe for public comment, criticism, and debate.

Private persons and private issues are private for a reason – they are not meant to be broadcasted and put on blast in front of the entire world. Having one’s life and personal matters broadcasted to the entire world could ultimately open them up to unwanted attention, personal attacks, and even physical violence.

For example, just as statements regarding public plaintiffs require a defamation plaintiff to prove a defendant acted with actual malice or reckless disregard, issues of public concern generally require a defamation plaintiff to prove the issue at hand was communicated or disseminated with actual malice or reckless disregard. And, for statements concerning issues of private concern, defamation plaintiffs often need only prove the statement was communicated or disseminated with ordinary negligence.

There are no notable cases in the state of Massachusetts detailing issues of public or private concern, and we strongly recommend looking to the above cases concerning public and private plaintiffs for a better understanding.

Online Brand & Reputation Management Tip: If you own your own business or company and want to make sure your online reputation is protected, we highly recommend establishing an online brand and reputation monitoring budget. Doing so is just a small cost to secure your business’s future and reputation. Furthermore, it’s a great way to get a feeling of how your customers view your brand or business, and identify intellectual property infringers.

If you’ve been the victim of online defamation and other libelous attacks, and want to understand your legal rights better, reach out to the defamation removal attorneys of Minc Law now! At Minc Law, we’re here to help you identify whether you have an actionable claim against an anonymous online poster/commenter, how to identify them, and how to hold parties accountable for online defamation and libel.

Now that we’ve walked you through all the requisite elements for an actionable defamation of character claim in Massachusetts, the different types of defamation plaintiffs in the U.S. legal system, and various lawsuit formalities and requirements, let’s turn to the numerous defenses a defamation defendant may utilize when confronted with a libel or slander claim.

Common Defenses to Massachusetts Slander & Libel Lawsuits

In this crazy and complex world of United States defamation law (and Massachusetts defamation law), there’s countless defenses defamation defendants may utilize and rely on in order to skirt defamation liability.

In this section, we’re going to address some of the most commonly relied upon defenses to libel and slander actions in the United States and Massachusetts.

Below are just several of the most popular defenses to defamation:

• Opinion
• Truth/Falsity
• Privilege (Absolute, Qualified, Fair Report, Neutral Reportage, Statutory)
• Incremental Harm Doctrine
• Communications Decency Act
• Libel-Proof Plaintiff Doctrine
• Wire-Service Defense

Let’s first get started with possibly the most commonly relied upon defense in the United States and Massachusetts – the defense of opinion.

Opinion: Can a Statement Be Independently Verified?

At the very crux of an actionable defamation claim is whether or not a statement contains a false assertion of fact – meaning, if the contents of the statement in question may be independently verified as true or false, then it will be determined to be fact (rather than opinion).

Statements which may not be independently verified as true or false (verified as fact or fiction), may however receive protection as opinion, and will enable defamation defendants to avoid liability in the United States and Massachusetts.

Under Massachusetts defamation of character law, opinions based on available facts or assumed non-defamatory facts are protected speech. Opinions based on facts are protected speech NO MATTER how unjustified or unreasonable they are.

So, what should you look for when determining whether a statement is opinion or not?

The overall context of the statement should be looked at, and if the published used cautionary words or qualifying words that should be weighed in the defendant’s favor. However, keep in mind that qualifying statements do not render a statement incapable of being defamatory. Shephard v. Bay Windows, Inc., 16 Mass. L. Rep. 726 (2003).

The statement must be provable true or false for a statement to be defamatory in the state of Massachusetts. This state common law rule does not conflict with the famous case of Milkovich v. Lorain Journal Co., which overturns the blanket opinion protections. In 1993, the Supreme judicial court of Massachusetts, in Lyons v. Globe Newspaper Co., 415 Mass. 258, 612 N.E.2d 1158 (1993), held that Milkovich reaffirmed the state law principle that “to be actionable, a challenged statement must be understood as stating actual facts about an individual.” Id. at 266.

Writing in first person will be sufficient to give the reader notice that the statements contained within are the views of the person writing.

Overall, if a reasonable third-party would have understood the alleged defamatory statement to be one of opinion, then it is an opinion in Massachusetts.

Let’s take a look at the test for opinion in Massachusetts.

Massachusetts’ Opinion Test & Case Examples

Massachusetts courts apply a contextual approach to determine whether a statement is opinion or fact. Massachusetts courts look to the following four (4) factors to determine whether a statement is opinion or fact:

• The specific language used
• The medium in which it was published
• The social context of the statement
• The broader context in which the statement was published. Id.

Now, let’s turn to seven (7) case examples where Massachusetts courts ruled on the defense of opinion:

• Twitter debate: In a heated Twitter debate saying someone was “f#$%ing crazy” was ruled to be a statement of opinion, as it was not claiming the person was suffering from a mental illness. The court noted that it’s important to analyze the context of the statement to determine whether it is a statement of fact or opinion.
• False online reviews: A defendant filed a counterclaim against the plaintiff claiming that the plaintiff had defamed him and his business by posting false reviews on Rip-Off Report. The court ultimately held that the reviews of the defendant’s gym were hyperbolic and clearly opinions.
• Travel warning: The statement “Let’s Go strongly recommends that travelers DO NOT stay here” is more than just an opinion or recommendation. It connotes that there are undisclosed defamatory facts that the statement was based on.
• Faulty construction: Statements are protected as opinion when the alleged defamers discloses the facts that he is basing his opinion on. In Downey, the defendant stated that the construction work was faulty, but they disclosed facts they used to come to that opinion, so the statements were not defamatory.
• Distraught pet owner: A reasonable person would have understood the disparagement of a veterinarian to be the opinion of a distraught pet owner.
• Radio talk show hosts: the standard for a statement being hyperbolic is whether a reasonable person would understand a statement to be hyperbolic. For example, radio talk shows are particularly hyperbolic and a Massachusetts court has held that a reasonable person would understand that.
• Public affair: A statement in an online video of a public meeting that the plaintiff was rumored to have had an affair was not as damaging as an assertion of fact, but such statement could have been as damaging as an assertion of fact if those in the (live) attendance believed the speaker possessed actual knowledge of an affair.

Truth/Falsity: Just Because It Stings, Doesn’t Mean It’s Defamation

As we’ve mentioned throughout this blog post, for a plaintiff to have an actionable defamation claim under U.S. and Massachusetts defamation law, the statement in question must be independently verifiable as true or false (as fact). If the statement in question is unable to be verified as fact, then it will likely give rise to a defense of opinion. However, if it is verifiable true or false, then we need to look into whether it is a false assertion of fact, or actually true statement.

It’s important to understand that while a true statement may cause you great stress or anxiety (and hurt your feelings), that doesn’t always mean you have a defamation claim on your hands.

Under Massachusetts defamation law, truth is an absolute defense to defamation. And, liability cannot be avoided by prefacing a statement by saying that someone else made the statement.

An important doctrine utilized in defamation law is the doctrine of substantial truth. Let’s a look at the doctrine of substantial truth, which addresses statements which may have some false elements, but remain overall true.

What is the Substantial Truth Doctrine?

Under Massachusetts law and the substantial truth doctrine, minor inaccuracies will not create a false statement. The statement should be viewed as a whole, and if the statement is substantially true, then the publisher of the statement will not be liable for defamation. Reilly v. The Associated Press, 59 Mass. App. Ct. 764,770 (2003).

Simply put, if the “gist” or “sting” of the statement is still felt/understood by the plaintiff or another party, then it will be true. Minor inaccuracies do not detract from a statement’s overall truthfulness.

• Although a technically inaccurate statement was made in a 1995 Massachusetts case, it was balanced by an included video, which showed an accurate report of events. Hence, the statement was still considered “substantially true” and protected under Massachusetts defamation law.
• A reporter claimed that judge Murphy was too lenient on criminals. To support this, the reporter invented and altered statements to heighten the dramatic impact. In the summary judgment phase, the court held that the statement was substantially true, but in the end the jury found that there was actual malice and awarded a $2.09 million plaintiff’s verdict.

Privilege: The Legal Right to Communicate A Specific Statement

Just as most legal principles and doctrines addressed in this comprehensive blog post are geared towards the furtherance of an informed society and uninhibited debate, so is legal privilege. Simply put, legal privilege is a person’s legal right, entitlement, or joy to publish or communicate a certain type of statement, at a certain time, and to a certain audience – even if the contents of which are defamatory.

Privilege exists at the very core of our democracy and is typically utilized in our most basic and fundamental decision making processes and institutions (think legislative, political, legal, social, financial). When drafting and refining important legislation and policies, both sides of the coin need to be addressed. Without the protection of legal privilege, persons looking to further develop our laws and policies would be punished for doing so, and ultimately prevented from hypothesizing or addressing any counter arguments to such laws/policies.

In this section, we’re going to walk you through the most commonly used legal privileges in the United States and Massachusetts. Some of the most commonly used legal privileges include:

• Absolute
• Qualified
• Fair Report
• Neutral Reportage
• Statutory

Now, let’s get into the apex predator of privilege and most comprehensive form of privilege there is – absolute privilege.

Absolute Privilege: All-Encompassing & Top Dog

When it comes to legal privilege in the United States, absolute privilege is top dog. Specifically, absolute privilege refers to a person’s unqualified and unconditional right to communicate or publish a statement at a certain time, and to a certain audience – even if the contents are defamatory.

As absolute privilege is the top dog of all legal privilege, it even extends to communications and statements which are made with actual malice or reckless disregard.

So, what are the most common instances where absolute privilege is utilized?

As we noted above, privilege is at the very core of our democratic processes and institutions, so naturally, absolute privilege is most commonly granted in our fundamental decision making institutions and processes – specifically, in judicial, legislative, administrative, and other official proceedings.

Under Massachusetts’ law, if there is an absolute privilege, there will be no liability even if there was an improper motive and even if the statement is false. An absolute privilege can however be defeated by an unnecessary or unreasonable publication.

Let’s take a look at several examples and currently recognized absolute privileges in the state of Massachusetts:

• Attorney agent: Statements made outside of the courtroom and statements made by an attorney’s agent, such as a private investigator, are absolutely privileged in Massachusetts.
• Civil complaints: Civil complaints are privileged in the state of Massachusetts. Chiras v. The Right One, Nos. 102831, 2008-138-B, 2008 Mass. Super. LEXIS 160 (May 19, 2008).
• Criminal complaints: Criminal complaints are also privileged in the state of Massachusetts.
• CORI reports: ‘Criminal offender record information’ (CORI) reports are privileged under Massachusetts law. Chiras v. The Right One, Nos. 102831, 2008-138-B, 2008 Mass. Super. LEXIS 160 (May 19, 2008).
• EEOC complaints: Complaints filed in a timely manner with the Equal Employment Opportunity Commission (EEOC) are privileged in Massachusetts.
• Legislative committee: Communications made to a legislative committee are absolutely privileged under Massachusetts law.
• Judicial function: Communications made by a judge while performing a judicial function are privileged under Massachusetts law.
• Lis Pendens: Filing a lis pendens memorandum – or a formal notice of legal action – is absolutely privileged in MA.
• Guardian ad litem: Communications made in a guardian ad litem report are absolutely privileged under Massachusetts law.

Absolute privilege may also be referred to as the “litigation privilege,” as statements made during judicial proceedings and quasi-judicial proceedings are subject to an absolute privilege in Massachusetts. Keep in mind however, that the statement has to be related to the judicial proceeding – such requirement has been broadly construed over the years though.

And, to determine whether a quasi-judicial proceeding qualifies, the court must look at the mechanics of the proceeding.

Qualified Privilege: The Second in Power

Think of qualified privilege as second in command to the all-encompassing nature of absolute privilege, as it is less thorough and attaches in far fewer situations. Qualified privilege may also be called “Common Interest Privilege,” and is a person’s legal right, joy, or entitlement to communicate or publish a certain statement, at a certain time, to a certain audience. However, what separates common interest privilege from absolute is that it does not protect statements which are published or communicated with actual malice.

Furthermore, qualified privilege usually only attaches in situations where the audience has a reciprocal interest in hearing the statement communicated. So, it is most commonly granted to persons in positions of trust and authority, who possess a legal, social, or moral duty to inform others of something or communicate a certain type of statement.

Under Massachusetts law, qualified privileges protect the defendant from liability for any defamatory statements they made, unless the defendant acted with actual malice or if the publication was:

• Excessive
• Unnecessary
• Unreasonable and done recklessly.

So, who does the burden fall on in order to show a statement was published with actual malice, or in an excessive, unnecessary, or unreasonable manner?

The plaintiff. The burden is on the plaintiff to prove the defendant abused the privilege.

Let’s take a look at several cases where Massachusetts has ruled on qualified privilege.

• Public officials: There is a conditional privilege (the same as qualified privilege) for public officials to be able to speak freely when they are discussing matters of public concern. Bruno v. Town of Framingham, Civil Action No. 08-cv-11403-LTS, 2009 U.S. Dist. LEXIS 108729 (D. Mass. Nov. 20, 2009).
• Employment: There is a qualified privilege for an employer making comments about an employee’s qualifications to a prospective employer. Perreault v. A.L. Griggs Indus., No. 96-361, 1998 Mass. Super. LEXIS 722 (Oct. 5, 1998).
• Criminal investigations: There is a qualified privilege for communications to police in relation to their investigations of a crime. Hutchinson v. New England Tel. & Tel. Co., 350 Mass. 188, 214 N.E.2d 57 (1966). “In cases where the defendant has gone to the police or communicated with others, on his or her own initiative and published an accusation which might otherwise never have been known, the report of the crime is only conditionally privileged.” Zajac v. Zajac, No. 2005-1805-B, 2007 Mass. Super. LEXIS 336, at *11-12 (Aug. 16, 2007).
• Protection of business interest: There is a qualified privilege if the publication is necessary to protect a legitimate business interest.
• Interest in communication: “In the absence of bad faith, each of these states grants a qualified privilege to communications between those having a common interest in the substance of the communication.”
• Elicited statements: Statements elicited from the plaintiff or through an intermediary.
• Legal duty: Statements made because of a legal duty are qualifiedly privileged in Massachusetts.
• Credit reports: Credit reports to subscribers of credit reporting agencies will receive qualified privilege under Massachusetts law. In re Retailers Commercial Agency, Inc., 342 Mass. 515, 519–20, 174 N.E.2d 376 (1961).
• Important public interest: Publication of information reasonably believed to affect an important interest of recipients, including the public, will be qualified privileged in MA. For this privilege to apply, the publisher must have a duty to inform the recipients (similar to legal duty privilege).

Fair Report Privilege: Guaranteeing a Free Media

Created in order to protect persons and organizations who rely on official documents, reports, and proceeding excerpts in good faith, and later publish/republish them, fair report privilege is essential for an informative and free media. Think about it for a second, without fair report privilege in place to protect media persons and organizations, how else would we receive important important and reports concerning our government? Furthermore, how would we even understand these reports if they weren’t synthesized and broken down into smaller pieces for us (it’s not uncommon for some reports to run into the thousands of pages).

At its most basic, fair report privilege exists to promote trust in our government processes and administrative bodies. If we, as the general American public, are unable to trust a government document or report (and are punished for doing so), then what type of free and democratic society would that be?

There is a common law privilege for the media when they make fair and accurate reports of official proceedings and governmental actions.

In the state of Massachusetts, fair report privilege has qualities of both a conditional privilege and an absolute privilege. Note that the report can contain minor inaccuracies and still be protected by the privilege. “A statement is considered a fair report ‘if its “gist” or “sting” is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.”

For example, in Barhoum, the New York Post published the pictures of two innocent men under the sub headline “Feds seek this duo pictured at the Boston Marathon.” Id. at *4-5. This publication was not protected by the fair report privilege, as the court held that the factual context of the headline and picture together were enough, by way of implication, to be defamatory – even though in the article itself, it said no evidence linked the men in the picture to the Boston Marathon bombing. Id.

Neutral Reportage: An Exception to a Hardline Rule

Most commonly known as “neutral report privilege,” neutral report is the common law privilege protecting persons and organization who republish false and unverified accusations (and facts) by public persons and figures about public persons and figures.

Neutral report privilege is an exception to the hardline rule, which imputes liability on persons who republish or repeat false and otherwise defamatory statements. Under the original rule of republication, any party who repeats or republishes a defamatory statement will be held equally as guilty as the original offending party.

Massachusetts courts have only recognized the neutral report privilege in dicta or in the mere editorializing of a judge’s statement.

Statutory Privilege: Codified by Law

Drawing its name from the word “statute,” statutory privilege is simply privilege which is explicitly codified by law. Statutory privilege is already prescribed for and details the situations and circumstances under which a party will be privileged in their statement or communication.

Below are three (3) statutory privileges enforced in the state of Massachusetts:

• Mass. Ann. Laws ch. 111, § 203 provides protection for any individual or institution that provides information, in good faith, to a medical peer review committee.
• Mass. Ann. Laws ch. 231, § 91A protects television stations and radio stations from defamation if they are forced not to censor things under federal law.
• Mass. Ann. Laws ch. 258, § 10 (c) protects public employees from liability for libel and slander.

Now, let’s turn to four lesser known defenses to defamation charges in the U.S. and Massachusetts.

Incremental Harm Doctrine

The incremental harm doctrine, considered the “linchpin” to United States libel and defamation law, is a common legal doctrine and defense relied upon which addresses statements which cause no actual significant damage to a plaintiff’s reputation.

Typically, if a defendant can prove that the publication or communication would have the exact same effect on the plaintiff’s reputation, had the questionable and challenged excerpt been excised, then the incremental harm doctrine defense will apply and compel judgment for the defendant.

A district court in Massachusetts has recognized the incremental harm doctrine. (Noonan v. Staples). However, no state court has recognized the doctrine.

Communications Decency Act: Immunizing ISPs & Websites

The Communications Decency Act is a piece of landmark legislation which effectively immunizes Internet Service Providers (ISPs) and websites for information and defamation posted by third-parties to their website/forum.

Under Massachusetts law, a website which posts complaints called “reports” about companies and individuals that refuse to take down defamatory “reports” while simultaneously advertising services by which defamed parties could pay the website to restore their reputations is protected by the Communications Decency Act (CDA) and does not violate Mass. Gen. Laws Ann. Ch. 93A where a website’s services to restore the reputation were not the cause of injury and the cause of the initial publication was a third party’s defamatory post.

Specifically, Section 230 of the Communications Decency Act protects online intermediaries, Internet Service Providers (ISPs), social media sites, people with blogs that allow comments, etc., from liability from the publication of defamatory material.

Video: Why Section 230 of the CDA Should Matter to You

Watch

Three conditions must be met to invoke Section 230’s safe harbor.

• First, “the defendant must be a provider or user of an interactive computer service”
• Second, “the plaintiff’s claim must be based on information provided by another information content provider”
• Third, “the claim must treat the defendant as the publisher or speaker of that information.”

Libel-Proof Plaintiff Doctrine

Sometimes, a person or organization is so reviled in their community that a defamatory or false statement causes no actual harm to their reputation. Such person is commonly labeled as a “libel-proof plaintiff,” as they are effectively immune from libel and defamation.

So, what types of parties are generally considered libel-proof?

Libel-proof plaintiffs are rare in this day and age. However, courts have often found a plaintiff to be libel-proof where they are well-known in a small-town community, a habitual criminal, and are already widely looked down upon or despised.

In Massachusetts, someone’s reputation can be so bad as to render them libel-proof as a matter of law.

Wire-Service Defense: For Reputable Wire Service Communications

Although it’s not the most popular or commonly used defense to a charge of defamation, the wire service defense is still relevant in today’s news and media landscape. Specifically, the wire service defense applies to persons and organizations who publish communications and information received via reputable wire service.

As of date of publish, Massachusetts has not ruled on any notable cases concerning the wire-service defense.

If you’ve been the subject of false online attacks and defamation, and are unfamiliar with the potential defenses a party may have to your defamation claim, we strongly urge you to contact an experienced internet defamation attorney today!

At Minc Law, our Ohio-based defamation attorneys have secured the effective and permanent removal of over 25,000 pieces of defamatory online content. And, we do it all for a flat, reasonable fee.

Contact us today to schedule your free, initial no-obligation defamation consultation by calling us at (216) 373-7706, or by scheduling a meeting online.

Massachusetts Defamation Damages

At the very heart of every defamation claim is the notion that the plaintiff suffered damages or injury as a result of the defamatory statement(s) in question. Damages are generally awarded as compensation or restitution for their injury suffered, and are generally quantified in a monetary form.

Under Massachusetts law, defamation damages may be categorized into four fundamental types:

• Presumed Damages
• Actual/Compensatory Damages
• Punitive Damages
• Nominal Damages

Presumed Damages & Defamation Per Se

As we touched on in Section 1, defamation per se will give rise to presumed damages for a plaintiff, meaning the plaintiff in question need not actually prove they suffered any injury or harm as a result of the statement in question.

Under Massachusetts law, presumed damages are not allowed when the defamatory material is of public concern, even if actual malice is shown.

The courts in Massachusetts have not definitively ruled on private plaintiffs receiving presumed damages on issues that are not of public concern.

Actual Damages: For Tangible Injury

Actual damages are the fair compensation of the plaintiff. Specifically, they include:

• Harm to reputation
• Pecuniary out of pocket losses
• Lost future wages
• Emotional distress/mental suffering, and much more

Note that for mental suffering, the plaintiff can recover for any mental suffering that would be the “natural result” of the defamation. Corporations may not recover for mental suffering.

Punitive Damages: For Especially Wanton & Malicious Conduct

Also referred to as “exemplary damages,” punitive damages are damages which are enacted to punish a defendant for especially wanton and malicious conduct. Punitive damages are generally enforced in cases of fraud, violence, or other inappropriate behavior by the defendant.

Massachusetts law does not allow punitive damages for defamation cases.

Nominal Damages: When There’s Nothing Else Left

Nominal damages refer to an award granted to a plaintiff in cases of a legal wrong, but no real financial loss as a result of that wrong. Nominal damages could be as little as $1 or $2 in some cases.

Under Massachusetts law, plaintiffs may receive nominal damages for libel if they cannot prove other damages.

Frequently Asked Questions (FAQ)

Below are some of the most frequently asked questions about defamation law in Massachusetts and the United States.

Q. What has been the effect of the Internet on free speech in Massachusetts?

A. Massachusetts courts have not held that Internet speech should receive greater protections than other forms of speech. (It might be pushing it to say that the Twitter debate case of Feld v. Conway,16 F. Supp. 3d 1 (2014) protects Internet speech).

Also, reasonable people might consider Twitter different to other forms of speech, making Twitter and “tweets” more susceptible to construction as opinions rather than facts.

Q. Are there any protections for anonymous speech in the state of Massachusetts?

A. Yes. There is one federal case that applies Massachusetts law and creates a procedure for “unmasking” an anonymous defendant.

The Court ultimately balances the right of the plaintiff to not be defamed with the right of the defendant to remain anonymous. Furthermore, the Court looks to the Ninth Circuit’s good cause analysis to help determine if the court should grant the plaintiff’s special motion for discovery to reveal the identity of the alleged defamer.

“Ninth Circuit precedent to apply a good cause standard. The factors that courts typically weigh in this good cause inquiry include the purpose for the discovery, the ability of the discovery to preclude demonstrated irreparable harm, the plaintiff’s likelihood of success on the merits, the burden of discovery on the defendant, and the degree of prematurity.”

Q. Can a Massachusetts defamation defendant retract, correct, or clarify their defamatory statement/communication before publication?

A. Under Massachusetts law, a retraction, correction, or clarification are not defenses to defamation, but can be brought up to mitigate damages.

Q. Does Massachusetts have any criminal defamation laws in their books?

A. Yes. However, the criminal libel statutes on the books in Massachusetts are likely unconstitutional.

Q. What are SLAPP Lawsuits? Does Massachusetts have any Anti-SLAPP Legislation in place to protect against such suits?

A. Short for “strategic lawsuit against public participation,” SLAPP suits are lawsuits filed by a party in order to intimidate, burden, or otherwise prevent an opposing party from entering into litigation. SLAPP suits are often considered frivolous, and used as an improper tactic to prevent an opposing party from having their day in court.

Under Massachusetts law, Mass. Ann. Laws ch. 231, § 59H, an Anti-SLAPP motion can be utilized if a civil claim against a defendant infringes upon their constitutional right of petition. Such standard has been interpreted broadly to not only include the right to petition the government, but also to encourage the public to pressure the government to review an issue. The right to talk to police about a crime is also protected.

Talking to a building inspector about a building’s problems is considered petitioning and testifying at a condominium board hearing is also considered petitioning. “The right to petition may include ‘reporting violations of law, writing to government officials, attending public hearings, testifying before government bodies, circulating petitions for signature, lobbying for legislation, campaigning in initiative or referendum elections, filing agency protests or appeals, being parties in law reform lawsuits, and engaging in peaceful boycotts and demonstrations.

When a defendant files an Anti-SLAPP motion, the court will start a special motion to dismiss the case. The court will dismiss the case, unless:

• “(1) the moving party’s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law, and
• (2) the moving party’s acts caused actual injury to the responding party.”

Additionally, “In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” Finally, the plaintiff must prove these two prongs by a preponderance of the evidence to save their case from dismissal.

Let’s take a look at five (5) examples:

• The defendants posted a blog on the Huffington Post about an oil spill. They were sued by an oil company about possible defamatory material in the article. The court held that the defendants were protected by Massachusetts’s Anti-SLAPP laws because they were petitioning a government body for more environmental protections. While they were not directly petitioning the government for their own self-interest, they were petitioning for the environment. The court ultimately held that petitioning for environmental protections will be considered petitioning for one’s self interest.
• The court held that a lawyer’s comments about a collection agency were not protected under the Anti-SLAPP statute because his speech was not solely about petitioning the public to stop collection agencies. The lawyer was also using his webpage about the collection agency to generate business.
• The court holds that a tenant’s remarks at a hearing held by the city building inspector is protected by the Anti-SLAPP statute because that is considered part of petitioning the government.
• The defendant posted a comment about the town selectman that called the plaintiff a Nazi. The defendant operated the website in question as a public forum and source of news for their town. The court held that this was protected by the Anti-SLAPP law. The allegedly defamatory statement involved solely petitioning activity and the selectman failed to show that the activity was devoid of factual support or an arguable basis in law.
• The brothers boycott of a car dealership by making, eliciting, and sharing comments online and in social media critical of the dealerships’ employment practices toward the brothers’ sister was not an exercise of the brothers’ right to petition the government. The actions were not undertaken to influence or even reach government officials or bodies. The brothers had not been trying to convince the dealership’s customers or the dealership to influence government action. Thus, the brothers’ speech was not protected by the Anti-SLAPP statute.

Q. What is Prior Restraint? Does Massachusetts enforce It?

A. Think of prior restraint as the anticipatory censorship by the government of a publication or communication before it’s actually even published.

Because of the First Amendment protections of free speech, the court is severely limited in its ability to issue injunctions in defamation cases.

Q. Are there any other relevant (but important) nuances of Massachusetts defamation law?

A. There’s two notable relevant nuances we’re going to take you through:

• As noted above, someone’s reputation can be so bad as to render them libel-proof as a matter of law. This is known as the libel-proof plaintiff.
• In a case of a large group defamation, the individual plaintiff has to show that they were targeted as an individual. Also, in a small group libel cases, there needs to be a small identifiable group or sub-group. Small groups have been as large as twenty-four people.

Work With the Defamation Removal Attorneys of Minc Law Today!

If you’re a resident of Massachusetts, or any other U.S. states, and have been the victim of online defamation and other false attacks, contact the internet defamation lawyers of Minc Law now!

At Minc Law, in our tenure as nationally recognized defamation attorneys, we’ve secured the removal of over 50,000 pieces of libelous and defamatory online content, and litigated in over 26 states and 5 countries. Rest assured when working with our highly trained team, you’re in good hands.

Here’s what you can expect when working with the Ohio-based defamation attorneys of Minc Law:

• Courtesy & Respect: Our team of highly trained defamation attorneys know how stressful and overwhelming online defamation and libelous attacks can be, so rest assured, we’re always on your side. Know that your goals are our goals, and we’re always here to advance your best interests.
• Open Dialogue & Communication: Some defamation attorneys go missing after the defamation removal process has begun. Not the lawyers of Minc Law. We’ll make sure to keep you updated about your defamation removal, along with any notable updates that may affect your situation. At Minc Law, we’re here to keep you informed.
• We Get Results: We’ve worked tirelessly with numerous website administrators, content managers, and third-party arbitration firms in order to secure swift and permanent removals, so we know who to contact and how to contact them. As noted above, we’ve also secured the effective removal of over 50,000 pieces of libelous online content. Websites and businesses respond to Minc Law.

It’s time to take back your online reputation and start controlling your Internet presence today! The longer you let online defamation sit and spread, the more damage it’s going to cause to your personal and professional life.

When it comes to suing for defamation, costs are a number one concern for our clients. While there is no one-size-fits-all answer for determining a defamation lawsuit’s total costs, there are several major factors that may impact the required budget to sue for libel or slander. If you are considering the option of filing a defamation lawsuit to stop libelous attacks to your reputation, we recommend checking out the video below to learn the stages of a defamation lawsuit, and the unique factors that can affect costs.

Video: How Much Does a Defamation Lawsuit Cost? Cost to Sue For Defamation

Watch

If you are the target of defamatory attacks, we can help hold the perpetrators accountable. We fight for our clients using both litigation (lawsuits) and non-litigation alternative methods. Contact us today to schedule your free, initial no-obligation consultation by calling us at (216) 373-7706, or by filling out our contact form online. During the consultation, we will discuss your situation, and go over all of the options available to you to resolve your matter.

We’re here to fight for your reputation!

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Daren G., Apr 14, 2020