Yelp! Libel or free speech: the future of Internet defamation litigation in Massachusetts in the wake of Noonan v. Staples.

• Author: Spinosa, Shauna L.

"If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." (1)

1. INTRODUCTION

   In Noonan v. Staples, Inc., (2) the First Circuit reinterpreted Massachusetts's libel statute by lowering the standard to prove actual malice in libel suits. (3) This has the potential for far-reaching consequences in the context of the internet blogosphere. (4) With the increasing trend of posting thoughts and product or service reviews on websites such as Yelp!, internet defamation litigation is on the rise. (5) Before Noonan, bloggers and internet defamation victims lacked a clear boundary between posting opinions constituting free speech and posting libelous statements that are actionable. (6) Legal scholars often lamented that defamation victims had no recourse for their damaged reputations in the law; internet bloggers could use the defense of truth to any libel claim and the Communications Decency Act of 1996 immunized websites from liability for libelous statements posted on their sites by third parties. (7) The court in Noonan interpreted Massachusetts's libel law as only including truth as a defense to libel where the bloggers making the statements lack "actual malice" or "ill will" towards the defamed individual. (8) As a result, bloggers expressing opinions and experiences on the internet are vulnerable to liability if the plaintiff can prove that the bloggers published even true statements with "ill will" or "malevolent intent." (9)

   The threat of litigation to bloggers and online reviewers chills free speech by exposing internet users to liability for posting any critical opinions or experiences on the internet, whether true or not. (10) Increased accessibility to customer reviews or information on an individual or their services via internet search engines makes critical blogs or messages a permanent reputation blight, thereby affecting employment possibilities or customer-based business. (11) Defamed individuals and businesses often threaten litigation against critical posters, which sometimes results in host sites taking down negative posts, or bloggers not posting any negative opinions at all. (12) Many internet users post anonymously, leading defamation victims to smoke out the identity of the individual through a subpoena to either sue or force the individual to remove the message for fear of expensive litigation. (13) Critics argue this process interferes with freedom of speech and individual privacy rights. (14)

   This Note will first analyze the history of early internet defamation litigation and subsequent federal statutory solutions. (15) It will then discuss libel statutes and decisions applicable to internet libel suits from Massachusetts and other jurisdictions. (16) The Note will then discuss the Noonan decision and how it reconciles with previous case law and Massachusetts statutory law. (17) In the analysis section, the Note will examine the Noonan decision and its potential impact on future internet libel suits. (18) The Note will argue for First Amendment protection for those who post anonymous opinions on the internet and a higher standard of proof to demonstrate the "actual malice" element of libel. (19) It will also recommend and discuss various alternatives for protecting bloggers' rights to free speech on the internet via state anti-Strategic Legislation Against Public Participation (SLAPP) legislation, which bars frivolous suits intended to silence critics. (20) Finally, this Note will examine the ability of Massachusetts's anti-SLAPP statute to extend to internet communications beyond those petitioning the government. (21)

2. HISTORY

   1. Libel and Defamation in Perspective

      1. Libel as a Tort

         Defamation is a common-law action that allows victims to recover for their loss of professional or business reputation. (22) Defamation comprises the separate, though related, torts of libel and slander, both of which allow recovery for false publications that damage an individual's reputation. (23) Libel encompasses written words or communication in a tangible form, such as a television broadcast or photograph, whereas slander involves oral communications. (24) The statutory definition of libel varies by jurisdiction. (25) In most all jurisdictions, true statements or statements regarding matters of public concern are protected from liability by the First Amendment. (26)

      2. Sullivan and Actual Malice

         In New York Times Co. v. Sullivan, (27) the Supreme Court expanded the privilege for defamatory statements in holding that the Constitution may protect defamatory publications. (28) The Court also held that plaintiffs who are public officials bear a higher burden of proof to demonstrate a negative statement was made with "actual malice," defined as knowledge of the statement's falsity or reckless disregard as to its truth. (29) The Court reasoned that "erroneous statement[s are] inevitable in free debate" and truth should be an adequate defense to libel. (30) This standard, however, does not apply to private figures filing actions, and the Court later held that states must require some level of fault for a private plaintiff attempting to meet the standard of proof for libel actions. (31) The Court's reasoning suggested that the First Amendment affords greater protections in actions brought by public officials than it does for defendants in private cases. (32)

         Cases following Sullivan expanded and clarified the requirement of actual malice. (33) Curtis Publishing Co. v. Butts (34) extended the Sullivan ruling to public figures who are not public officials. (35) The Court justified the heightened standard by arguing that public life carries with it an inherent risk of defamation and that public officials are in a position to rebut such defamatory statements. (36) In Rosenbloom v. Metromedia, Inc. (37) the Court also explored constitutional protections for speech defaming private individuals. (38) The Court, in a plurality opinion, held that actual malice was required in cases brought by private plaintiffs if the statements at issue addressed matters of public or general concern. (39) In Gertz v. Robert Welch, Inc., (40) the Court abandoned Rosenbloom's rationale, holding that the actual malice test applies only where the plaintiff has greater access to public communication, the plaintiff has assumed the risk of defamation, and the source of public attention to which the plaintiff has availed himself is the subject of the defamatory statement. (41) Gertz established the current standard for First Amendment protections of defamatory speech. (42)

      3. Libel on the Internet

         The increased ability of the public to express thoughts or experiences on the internet has made individuals, businesses, and corporations easy targets for defamation. (43) Instances of online defamation have become more prevalent as people posting statements on the internet exercise free reign in expressing their opinions, because they expect all true statements to be protected by the First Amendment. (44) Increased internet speech has led to an increase in victims alleging defamation and seeking recovery through tort actions. (45) It is difficult to apply defamation law, which is based largely on newspaper publications, to the internet because of the many parties involved in hosting a site, providing internet service, and posting messages. (46) These aspects leave the line unclear as to what constitutes libel on the internet. (47) In Cubby, Inc. v. CompuServe, Inc., (48) the United States District Court for the Southern District of New York held that CompuServe, an internet service provider (ISP), was not liable for defamation because it exercised no editorial control, and was therefore a mere distributor of the defamatory posting. (49) Subsequently, in Stratton Oakmont, Inc. v. Prodigy Services Co., a New York court held that an ISP could be liable for third-party content where the service provider exercised editorial control. (50)

   2. Section 230 and Immunity for Websites

      1. Context for the Communications Decency Act

         Those defamed by internet speech began pursuing defamation actions against the internet host or service provider for the site displaying the defamatory comments. (51) Following Cubby and Stratton Oakmont, which held ISPs liable for third-party postings where they exercise editorial control, Congress sought to clarify the liability of online service providers and protect free speech on message boards by immunizing ISPs from liability if they do not retain editorial control, thereby overruling Stratton Oakmont. (52) To limit litigation against website hosts and ISPs, Congress passed Section 230 of the Communications Decency Act (Section 230), thereby immunizing ISPs from liability in defamation actions where a third party posted the defamatory statement. (53)

      2. Application of Section 230

         In Zeran v. America Online, Inc., (54) the Fourth Circuit, interpreting Section 230, maintained that websites are not liable for third-party defamatory content even where they receive notice of such content and yet fail to order the third-party user to take it down. (55) The court further held that Section 230 immunized ISPs from online publication of third-party content even where they had actual or constructive knowledge of the statements, noting that one of the important purposes of the statute was to encourage self-regulation of internet speech. (56) zeran argued Section 230 immunity only applies to publishers, and computer service providers like America online are normally considered distributors rather than publishers, and thus still subject to notice-based liability. (57) The Ninth Circuit, in Batzel v. Smith, (58) expanded Section 230's immunity beyond the ISPs to include an individual who maintains an e-mail mailing list for his website. (59) The court did so by defining interactive computer service as...