Note: This page covers information specific to Massachusetts. For general information concerning defamation, see the Defamation section of this guide.
Elements of Defamation
In Massachusetts, the elements of a defamation claim are:
- a false and defamatory communication
- of and concerning the plaintiff which is
- published or shown to a third party.
Carmack v. National R.R. Passenger Corp, 486 F.Supp.2d 58 (D.Mass 2007). A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence. These elements of a defamation claim in Massachusetts are similar to the elements listed in the general Defamation section, with the following exceptions:
Defamation Per Se
Massachusetts has abolished the separate category of defamation per se at least in part. Under state common law, any libel is actionable per se. Sharratt v. Housing Innovations, Inc., 365 Mass. 141 (Mass. 1974). This means that plaintiffs do not need to plead or prove economic losses in order to prevail on libel claims.
However, Massachusetts courts have continued to discuss defamation per se. It appears the state might still recognize libel per se when determining whether a statement "could damage the plaintiff's reputation in the community" -- which is part of the consideration of whether the statement is defamatory. Albright v. Morton, 321 F. Supp. 2d 130 (D.Mass. 2004); Stone v. Essex County Newspapers, Inc., 367 Mass. 849 (Mass. 1975). Libel per se in this context seems to encompass statements that charge the plaintiff with a crime, that allege the plaintiff has certain diseases, or that may prejudice the plaintiff's profession or business. Morton, 321 F. Supp. at note 3.
It also appears that Massachusetts still recognizes defamation per se in cases involving slander rather than libel. Ravnikar v. Bogojavlensky, 438 Mass. 627 (Mass. 2003). However, this is unlikely to arise in an Internet-based defamation action because online defamation almost always involves libel law.
In Massachusetts, any elected official holding public office is considered a public official for the purposes of defamation. Lane v. MPG Newspapers, 438 Mass. 476, 482-484 (Mass. 2003. This means that any elected official in public office -- no matter how small the scope of her duties -- must prove that the defendant acted with actual malice in order to prevail on a defamation claim. The Lane court found that an elected town representative was a public official though the representative's duties were limited to meeting with the rest of a 104-member committee once a year to vote on various town issues.
Massachusetts recognizes criminal libel as a common law offense, though it does not have a criminal libel statute. Commonwealth v. Clapp, 4 Mass. 163 (Mass. 1808). However, there does not appear to be any Massachusetts criminal libel case law since the Supreme Court's 1966 decision in Ashton v. Kentucky, which invalidated the Kentucky common law crime of criminal libel as unconstitutionally vague and overbroad. Ashton v. Kentucky, 384 U.S. 195 (1966). Following the Court's decision in Ashton, many states have repealed their criminal libel statutes or ceased to recognize the common law crime.
Privileges and Defenses
Massachusetts courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, the wire service defense, and the fair report privilege. Massachusetts has neither recognized nor rejected the neutral reportage privilege.
There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.
As a general matter, if a statement is substantially true, it cannot be actionable as defamation. See Milgroom v. News Group Boston, 412 Mass. 9, 12-13 (1992). Under Massachusetts statutory law, however, "truth shall be a justification unless actual malice is proved." M.G.L. c. 231 Section 92. This potential limitation on the truth defense is unlikely to be constitutional and, indeed, Massachusetts courts have held that it does not apply to cases involving public-figure or public-official plaintiffs or cases brought against media defendants that deal with matters of public concern. Materia v. Huff, 394 Mass. 328, 333 n.6 (1985); Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129, 134 (1998). No court has applied the statute in a case brought by a private plaintiff that involves issues not of public concern.
Neutral Reportage Privilege
Massachusetts has not recognized or rejected the neutral reportage privilege. Reilly v. Associated Press, 797 N.E.2d 1204 (Mass. App. Ct. 2003).
Statute of Limitations for Defamation
The statute of limitations for defamation in Massachusetts is three (3) years. See M.G.L. c. 260 sec 4.
Massachusetts has adopted the single publication rule, defining publication as the time when a work is "first made widely available to the public". See Abate v. Maine Antique Digest, 17 Mass. L. Rep. 288 (Mass. Super. Ct. 2004). The Abate court also explicitly extended the single publication rule to statements published on the Internet. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.