Truth Is No Longer An Absolute Defense Against Libel?!?

from the um...-that's-not-good dept

Thu, Feb 26th 2009 8:36am — Mike Masnick

Thanks to Jon, for pointing to us a very scary recent court ruling that appears to have done away with one of the most basic free speech rights: that truth is an absolute defense against libel. Apparently, a federal appeals court in Boston feels that there are exceptions to this rule, and that even the truth can be libelous. If that seems incredibly problematic, you're right.

The case involved the office supply company Staples, who had fired an employee for abusing the company's travel and expense reporting system. After letting the guy, Alan S. Noonan, go, the company sent an email to many employees letting them know why Noonan was fired: "A thorough investigation determined that Alan was not in compliance with our [travel and expenses] policies." Noonan sued for libel, but Staples pointed out that since it was entirely accurate, there was no case.

However, the appeals court noted a century old Massachusetts law that suggests that truth is a defense against libel except if the plaintiff can show "actual malice" by the defendant in publishing the statement. Even though an earlier ruling had ruled that particular law was unconstitutional, the appeals court said that earlier ruling didn't apply. Instead, it said that since Staples had never named an employee fired for similar reasons, there was "malice" in sending out the email it sent. This may only apply in Massachusetts and it's highly likely to eventually be overturned (either in a rehearing by the entire appeals court, or eventually the Supreme Court), but in the meantime, it represents a very troubling change in the commonly accepted understanding that true statements can't be found as libelous.

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Filed Under: libel, malice, massachusetts, truth
Companies: staples

37 Comments

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P. Warnes, 26 Feb 2009 @ 8:51am

Being a Jerk
There seems to be so much assumption that being a jerk is illegal it is surprising that there are not more laws against it. If you don't say 'thank you' you get a night in the box.

Though in this case it does not even look like Staples was being a jerk, just letting other employees know what can get you fired as well as putting a stop to any rumors over why he was fired.
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Anonymous Coward, 26 Feb 2009 @ 9:08am

I thought this was always the case. Even if something is true, but you're publishing it for the purpose of hurting someone, that you can still be held liable.
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- Chronno S. Trigger, 26 Feb 2009 @ 10:35am
  
  Re:
  Yep, that's why McDonald sued Subway for saying that their burgers have more fat than the subs. Subway intentionally stated facts to undermine and damage McDonald's standings in the customer's eyes.
  
  Oh wait, that never happened.
  
  Libel/slander is stating fallacies as fact. Harassment would fit this better.
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- Pete, 26 Feb 2009 @ 12:39pm
  
  Re:
  It's pretty tough to tell WHY someone is doing something - and a horrible thing to wrap a law around. I said lots of things to people, about people, that were true - and hurt them. It wasn't that I was maliciously TRYING to hurt them - I just wasn't taking their being hurt emotionally into account. That doesn't make me libelous. It makes me callous - but that shouldn't be illegal.
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Chuck Norris' Enemy (deceased), 26 Feb 2009 @ 9:11am

I love it!
After letting the guy, Alan S. Noonan, go, the company sent an email to many employees letting them know why Noonan was fired: "A thorough investigation determined that Alan was not in compliance with our [travel and expenses] policies."
I love it when you call 'em out!
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Anonymous Coward, 26 Feb 2009 @ 9:17am

Even your at times nemesis Mr. Sheffner shares your concern. The same can be said by contributors at the Volokh Conspiracy. Perhaps Massachussetts has a different body of tort law, but in many jurisdiction the facts in this case do suggest a legal claim, not for libel, but for what is known as "public disclosure of private facts". Florida, and I believe California as well, have an established body of law concerning this later tort.

One case in Florida does come to mind, but I studied it so long ago that I do not recall the name, that involved a homeowner's association that sent out a letter to all homeowners specifically informing them of the names of homeowner's not complying with the association's rules. Obviously the ones so identified were not very happy to be held up to what they believed was public ridicule. The court agreed and dinged the association for sending the letter. If Massachussetts recognizes a similar tort, I have to wonder if it was also asserted as a claim. The court in the Massachussetts case only discussed a libel claim because that apparently was the only issue before the court. I have not seen the complaint, so I have no way of knowing what other legal claims were being asserted in the plaintiff's complaint.
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Gabe, 26 Feb 2009 @ 9:41am

What is also scary...
is that the reason this was libel was that "since Staples had never named an employee fired for similar reasons." So, now the first time you mention someone doing *anything* it could be construed as libel!
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It's Me, you dummy!, 26 Feb 2009 @ 9:45am

Public disclosure of private facts and libel are so closely related it's not surprising that the court ruled this way. The trouble is, proving actual malice is like proving intent - nearly impossible.

It'll be an interesting one to watch.
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- Michial, 26 Feb 2009 @ 12:08pm
  
  Re:
  In this case you may not be able to prove malice, but is sure looks like they opened a can of worms for their HR department.
  
  I am guessing that since they could have simply sent out a reminder of the companies travel policies with naming this guy by name is where the judge implied some level of malice.
  
  My guess is this guy has several lawsuits before judges. The breach of privacy when it comes to his employment records for starters.
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Anonymous Coward, 26 Feb 2009 @ 9:54am

i see your point but
but why did they decide to single him out and name him when they usually don't.
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- David, 9 Mar 2009 @ 5:48pm
  
  Re: i see your point but
  Curious that they did single him out while at the same time a Senior VP reporting directly to the President of the company was found to have embezzled hundreds of thousands of dollars right under their nose and no email was sent. This case preceded the one under discussion and while the Senior VP is also under criminal investigation, No Notice of termination was sent to the staff. If you read the record the one they singled out had been named employee of the year, traveled over 269 days a year and made a mistake with an entry for McDonalds ($1129 instead of $11.29 ) The $100 overcharge that keeps being blogged about was in fact charges for changes in flights that were later found to be accurate. In fact Staples later sent a reimbursement check to the Defendant for expenses due after their investigation. The other "travel policy" violated was using his personal credit card which was also found to be a practice of about 40% of the employee's that traveled frequently. The malice here was to use an employee that was highly regarded by both management and staff and to distract attention from criminal acts committed by senior management. The Management team needed to send a message to the stockholders due to the embarrassment caused by a senior level manager. The punishment should fit the crime and hiding behind the "truth" can also be done with malice. There is more to this case than meets the eye... this is Corporate America using force against the little guy to protect their position and image; this time however the little guy faught back. The one thing they never thought would happen! In fact this man has spent hundreds of thousands of dollars in legal fees to defend his reputation. Does that really sound like the act of an employee that wanted to make a $1,000 on his expense report? Given the current state of the union, maybe it's time we stood behind the little guy for a change and investigate the whole "truth"
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Anonymous12, 26 Feb 2009 @ 9:59am

The problem I have is with the "actual malace". From the companies perspective, it was a buisness decision to use a person as an example of violation of a company policy. Just because this may put him in a bad light, due to facts, doesn't in my mind ring "actual malce" although I'm not an attorney. The point is, INTENT. Was there intented malace? Excluding theoretical internal company communications showing otherwise, in my opinion, the court erred significantly.
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Anonymous Coward, 26 Feb 2009 @ 9:59am

Hmmm, I am divided on this one.

Doesn't Staples have anyone that works in HR that knows what they are doing? Are they clueless?

According to the article, it sounds like more than our friend Alan was canned, so why call this guy out? Staples really screwed up in sending out this message, and even I would have advised leadership not to send this email out, and I am not in HR or in legal.
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- Anonymous Coward, 26 Feb 2009 @ 12:06pm
  
  Re:
  Easiest possibilities:
  A) Rumors over why he was fired.
  B) Rumors of other people doing the same thing but no proof so they make an example out of the one guy they did catch.
  
  The guy was breaking the rules. Now he faces the consequences.
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HR guy, 26 Feb 2009 @ 10:07am

Muddy waters
Many employers include caluses in their employee handbooks regarding the public release of many aspects of what could be considered an employee's 'personal information'. Quite often, reiterations of these clauses are included in severance agreements, and employers have been known to agree to withhold any comment on an employee post-sever in return for the emloyee agreeing to hold the company harmless for any wrongs done during the course of his/her employment. Under such agreements, employers who are contacted about a former employee will only disclose the dates of employment and position title(s) the individual held while employed, and no information regarding the employee will be circulated within the company. A breach of this agreement by either side is cause for legal action. While I don't know the entire circumstances of this case, this would be one situation in which the former employee's lawsuit could be seen as justified.

Of course, in that case the suit would be for breach of contract rather than libel, but hey, stranger things will happen. Oh, yes, they will happen.
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Anonymous of Course, 26 Feb 2009 @ 11:02am

Quaint laws
I wonder if they still enforce other quaint laws
in Massachusetts, like... You are required to bring
your firearm to church and you're bound to shoot anyone
you see crossing into the state from Rhode Island.
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- snowburn14, 26 Feb 2009 @ 11:14am
  
  Re: Quaint laws
  We are still required to shoot anyone crossing over from RI, but only if we can see them through the church window...
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  - Anonymous Coward, 26 Feb 2009 @ 11:47am
    
    Re: Re: Quaint laws
    Ok, that was a good one. lmao
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Anonymous Coward, 26 Feb 2009 @ 11:06am

w00t!
I would like to sue my teacher for disclosing that I got a 'B' to Registration and Records
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batch, 26 Feb 2009 @ 12:59pm

fired due to your own actions? who cares, sue anyway
So, he caused himself to get fired yet still feels the need to grasp for straws to feel vindicated. Too bad he won; its not like that makes what he did (to cause himself to be fired) any less warranted.
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Anonymous Coward, 26 Feb 2009 @ 1:00pm

Maybe the judge found for the guy just because Staples had been so stupid that he just had to punish them?

I can guarantee that no qualified legal, HR or internal communications person saw that email before it went out. That was one of the dumbest things I have ever head a company doing.
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anymouse, 26 Feb 2009 @ 1:03pm

Quote
"They say that sufficiently advanced incompetence is indistinguishable from malice. Nowhere is this more clear than corporate HR."
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pr, 26 Feb 2009 @ 1:14pm

Why the double standard?
If our hero had been canned, then set up staplessucks.com, everyone would have been defending him. Even if he hadn't set up or whoever_last_fired_him_sucks.com. Even if he had in so doing released what could have been considered company sensitive information it would have been cheered as an inalienable right to free speech, a blow for freedom, much needed sunshine on the internal workings of a big corporation.

So why is it when the company fires the guy for a good reason it's "private information", or harassment, or "publishing for the purpose of hurting someone", or just "the dumbest things" to simply reveal the barest facts of the situation.

This smells like a judge (and a bunch of armchair lawyers) who like to "side with the little guy" whether or not the little guy is wrong.
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Jesse, 26 Feb 2009 @ 1:35pm

While I don't know about this case, it seems reasonable to me in general. If say somebody was going around sharing information that was true but private, wouldn't you think that is a problem? If a person walks in on another person doing something embarassing, should they be allowed to go around and smear their reputation, even if it is true? Particularly when the act is inconsequential (i.e. not illegal or harming anyone), spreading that truth is particularly malicious and unnecessary.

Similarly, there is a defense, I believe, to say that even though something that spreading information that is negative and false is not actually libel in the case where the plaintiff has no reputation to defend.

To me, at the surface at least, this ruling does not seem so bad.
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- Anonymous Coward, 26 Feb 2009 @ 4:05pm
  
  Re:
  If say somebody was going around sharing information that was true but private, wouldn't you think that is a problem?
  
  It may be a problem, but that doesn't make it libel. You're confusing invasion of privacy with libel.
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- Azrael, 27 Feb 2009 @ 12:48am
  
  Re:
  " the plaintiff has no reputation to defend "
  If some judge, lawyer or any other guy would try that on me it would be their last act.
  I am the only judge, jury and executioner about that.
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Willton, 26 Feb 2009 @ 1:41pm

Likely to be overturned? Hardly.
This may only apply in Massachusetts and it's highly likely to eventually be overturned (either in a rehearing by the entire appeals court, or eventually the Supreme Court)

I have serious doubts about this. This is an issue of Massachusetts state law, not federal law. I would be extremely surprised if the entire 1st Circuit or Supreme Court of the United States would be interested in hearing this case. This decision, for all intents and purposes, is final.

Your contention that this "actual malice" statute was ruled unconstitutional is only half right. Read your link: it was ruled unconstitutional regarding matters of public concern. The firing of a Staples employee and the subsequent providing of the name of said employee to all members of the company is hardly a matter of public concern. Thus, the "actual malice" statute still stands as constitutional and enforceable.

Lastly, this is a federal court making a ruling over a state law issue. Such a decision is not binding precedent on Massachusetts courts. No state court needs to follow the reasoning of this case if it does not want to do so.

In sum, this is hardly "the most dangerous libel decision in decades" as the Nieman guys would have anyone believe. This case is wholly divorced from the journalism arena, and it is not precedent that needs to be followed by anyone. Claims that this case is "very troubling" is completely reactionary and unthoughtful. Come on, Mike, you should be better than this.
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- Anonymous Coward, 26 Feb 2009 @ 7:37pm
  
  Re: Likely to be overturned? Hardly.
  Oh - it's ok then.
  Nothing to see here, move along.
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Griffyn, 26 Feb 2009 @ 2:57pm

My thoughts are that the exception in the law is reasonable.

What if the e-mail Staples had sent around stated that 'Our downsizing project has decided to let go John Smith, who was the least intelligent member of the team, had the highest error rate, and also had a number of personal hygiene issues, such as body odor and never washing his hands.'.

While all that could be testifiably true, I would agree that it's malicious and that John Smith would have a case.
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- Anonymous Coward, 26 Feb 2009 @ 4:07pm
  
  Re:
  While all that could be testifiably true, I would agree that it's malicious and that John Smith would have a case.
  
  Maybe, but not one of libel.
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Anonymous Coward, 26 Feb 2009 @ 3:59pm

Truth Is No Defense
In fact, the truth is often an offense. Many people have suffered greatly for telling it.
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wklink, 27 Feb 2009 @ 7:39am

Private act?
People here keep saying this is somehow a "private act". The fact that they chose not to prosecute this fellow doesn't make it private. At what point did the company become obligated to keep employee theft and abuse private?

Also, since others had been fired for doing the same thing and people were still doing it, doesn't it make sense for the company to change its policy and let their employees know that people do get fired for this type of behavior?
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- Willton, 27 Feb 2009 @ 7:49am
  
  Re: Private act?
  People here keep saying this is somehow a "private act". The fact that they chose not to prosecute this fellow doesn't make it private. At what point did the company become obligated to keep employee theft and abuse private?
  
  Also, since others had been fired for doing the same thing and people were still doing it, doesn't it make sense for the company to change its policy and let their employees know that people do get fired for this type of behavior?
  
  Perhaps, but I don't see how accomplishing this goal requires calling out the specific employee by name.
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Gene Cavanaugh, 27 Feb 2009 @ 12:54pm

Truth as an absolute defense
Michael, as an attorney I can assure you that truth has never been an "absolute" defense in libel.
What is an absolute defense, although the courts have not always said so, unfortunately, is the intent to be truthful, whether successful or not, even with malicious intent (in fact, maliciousness is not normally an issue).
So, if someone tells a half-truth, arguably the "truth" of what is actually covered, but deliberately giving a false impression (George W. Bush and "Darth" Cheney come to mind) and it is harmful, it is and should be actionable.
Though this is not libel, picture someone lighting a match and then yelling "fire!" in a crowded theater. Truthful, yes, actionable, both criminally and civilly, yes.
And, "truthfully" (sorry, I had to get that in there) I think I may sense malicious and perhaps misleading behavior in this case - and no, I don't think it is the end of our civilization or whatever.
Not a firm opinion, of course, I don't know enough about it for that.
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Jon Boyd Ann Arbor real estate buyer's agent, 6 Mar 2009 @ 11:38am

Malice can be the truth
I understand the position.

Many people make mistakes.

That doesn't mean that posting those mistakes with the specific intention of hurting that person should be allowed.

It is a hard concept until you look at it from all sides.
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hecuba, 27 Feb 2010 @ 5:02am

Truth no defense
This has actually always been the case in English law. Say someone takes a pencil home from the office and you call him a thief: technically what you say is true, but the damage created by your accusation is out of all proportion to the actual offence. And I agree with David, that's what seems to be going on here.

The real problem in U.S. libel law is the opposite: the powerful media lobby has established the "Sullivan defence" which gives the media the right to lie about people in the name of "open public debate". So a reporter can call you a pedophile, based on some hearsay or maybe mistaken identity, and destroy your life an your career, but you have no recourse. He can plead that he was working to a tight deadline and didn't have a chance to check his sources, poor guy, but he wasn't being actually malicious, so it's OK.

There are a few sane heads in the legal community who have started to challenge Sullivan, pointing out that far from encouraging open debate it actually stifles it, because you can't have any confidence in what you read any more if the media can say what they like with impunity.

Bottom lines: the relationship between truth and freedom of speech isn't as simple as it seems, and it's nice to see the little guy win for a change.
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Scott, 24 Nov 2010 @ 6:49am

Truth can be libelous
what a ridiculous reason-"Because it had never been done before (the email listing reason for firing), they must be trying to be malicious, therefore it's libelous." Huh? That means they could NEVER do it, since any first time sending out any such email would be without precedent, therefore libelous by this liberal idiot judge's wacky reasoning.
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