Tuesday, March 10, 2009
First Circuit issues unprecedented opinion on defamation
A little less than a month ago, the Federal Court of Appeals for the First Circuit, interpreting Massachusets law, issued an unprecedented opinion on the topic of defamation. The Court held that a plaintiff could support an action for libel even though the statement upon which the claim was based was actually true. This is unprecedented because it goes against one of the most basic principles of defamation law. By definition a libelous statement is one that is false. It is the fact that it is false that damages someone's reputation. It is true that a few jurisdictions do recognize a cause of action when a truthful depiction of someone creates a false impression about him or her but those cases are about the impression created by photographs. The typical claim in those cases involves a photograph that shows the plaintiff with a known public figure they do not support or during an activity for a cause they do not support. The photograph is true but the plaintiff alleges it suggests that he or she supports the cause or personality in the photo when in fact they do not. This is not what was involved in this case. The recent case in the First Circuit, available here, involves an employee who was fired from his job for allegedly padding expense reports. An executive of his employer sent an e-mail to about 1,500 other employees informing them that the plaintiff had been fired for violating company policies. Even though the statements in the e-mail message were true, the plaintiff sued for defamation. The Court starts its anlysis saying that "since a given statement, even if libelous, must also be false to give rise to a cause of action, the defendant may assert the statement's truth as an absolute defense to a libel claim." This is clearly the generally accepted principle everywhere. Because the statement was in fact true, the plaintiff's complaint was based on the allegation that the statement, although true, "gave the impression" that he had committed a crime, which was false, and placed his character (his honesty) in question. Essentially, he was arguing that a true statement can be defamatory if it leads to a wrong impression regarding the plaintiff's character. The Court correctly rejects this argument finding there is just no support for it. However, the Court then finds that Massachusetts law recognizes a narrow exception to the general rule: "the truth or falsity of the statement is immaterial, and the libel action may proceed, if the plaintiff can show that the defendant acted with "actual malice" in publishing the statement." This "actual malice" refers to the old common law concept of "ill will"or "evil motive" (as opposed to the actual malice concept developed by the Supreme Court in New York Times v. Sullivan and its progeny), which has been declared irrelevant in cases that involve public figures or topics of public interest. Although this old concept has been pretty much abandoned, I understand if the Court is saying that this case is purely a common law-private person-no public interest type case where we are not going to apply a constitutional standard. If that's the case, applying this standard would only require an evaluation of the defendant's motive in making the statement. If its intent was to cause an injury by disclosing the true statement, then the plaintiff would have a cause of action. The problem is that this type of claim has nothing to do with defamation. It is based on the intent of the speaker and on an evaluation of the motives behind it. The Court goes through the analysis and concluds that, given the evidence, a jury could conclude that the defendant "singled out [the plaintiff] in order to humiliate him." And on that basis, remands the case for the jury to decide the case. The problem is this: What the Court has described is intentional conduct with intent to humilate and that is an example of intentional infliction of emotional distress. That is the proper claim here; not defamation.