Yelp! Libel or Free Speech: The Future of Internet Defamation Litigation in Massachusetts in the Wake of Noonan V. Staples

Article excerpt

"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)

I. 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)

II. HISTORY

A. 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. …