Whoa: Court rules truth no longer an absolute defense in a libel suit

Robert Ambrogi analyzes a U.S. Court of Appeals decision that said a Staples salesman could continue his libel suit against the company even though he agreed the company had been truthful in a public statement explaining it had fired him for embezzlement.

The court ruled on Friday that you can successfully sue for libel over a true statement if the statement is made with malicious intent - in this case, after Staples fired the guy, a vice president sent e-mail to 1,500 employees letting them know why. Ambrogi is aghast at the implications of the ruling, especially since the court cited a 1902 Massachusetts law that the state Supreme Judicial Court had earlier ruled unconstitutional in a similar case:

... This is far from the end of this case. The 1st Circuit's decision sends it back to the lower court for a trial to determine how the case should be decided. Most likely, Staples will ask the full panel of 1st Circuit judges to review this case en banc. It could even make its way to the Supreme Court. For the time being, however, be afraid -- be very, very afraid -- of this precedent. If ill will is all that is needed to turn a truthful statement into libel, then everyone is a potential defendant.

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    Well even if it were not

    Well even if it were not illegal it definitly is not kosher in the corporate world to send an email out to all your employees in such a way. He could be the biggest jerk in the world but there is a good chance a certain percentage of those 1,500 people liked the guy to some extent. Its bad for morale.

    Lawyers can always turn you into a defendant

    You can always become a defendant regardless of whether you've done anything wrong. That's always been true both in civil court and in criminal court, and winning in court doesn't fix the damage that's already been done from being sued or being prosecuted.

    They've had it in France and

    They've had it in France and England forever. The UK makes money off of it bigtime - it's called "libel tourism."

    In France, just google "Sarkozy voodoo doll." (and note that nobody went to jail or got fined over the GWB version.)

    Another angle...

    The "malicious intent" and/or "intent to defame" precedent could be helpful in other cases, though. For instance, when someone has outed a person as transgender, that person ends up being harassed or fired or evicted, and the victim has little legal ground to stand on.

    I'm thinking of situations in which the accused's actions don't amount to harassment, since it might have been a one-time sharing of information using neutral language, but were clearly done with an intent to spread true information that the person clearly did not want to be public. In a lot of these instances, the person spreading the information certainly intended to make someone uncomfortable and make the person's work life or community life more difficult, but can't be proven to have been trying to incite violence or harassment or anything that would be illegal. Even in the few communities where gender identity is a protected status, it doesn't always amount to discrimination if all someone did was to spread true information about someone, because they have the defense that they are an equal-opportunity personal-information-sharer.

    About the only thing left to sue the perpetrator under is libel/slander, and then the "absolute truth" defense gets in the way.

    other legal possibilities

    There are other legal claims that could apply to these situations (i.e., where there's malice involved), such as intentional infliction of emotional distress or -- in a work or business setting -- intentional interference with contractual relations.

    Both claims are hard to win, but so is libel...at least until this weird decision was issued...

    This is a MA thing, and this court didn't make it up

    An action for libel, generally, is an action brought under state law. Thus, each state's law is different. While some hold truth as an absolute defense in all circumstances, Massachusetts does not. This isn't a case law created thing, however. The legislature created it.

    Mass. Gen. Laws ch. 231 § 92 states:

    The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libellous; and the truth shall be a justification unless actual malice is proved.

    The US Supreme Court cited it when deciding American Well Works Co. v. Layne & Bowler Co. back in 1916 - this is hardly a new development. Worth noting that Mass' own Oliver Wendell Holmes wrote the opinion.

    Whether or not we should allow for such a defense is a whole other matter.