Defamation and Online Harassment Laws in Massachusetts

Defamation is a common law claim in Massachusetts. The plaintiff must show that the defendant made a statement about the plaintiff to a third party, that the statement could damage the plaintiff's reputation in the community, that the defendant was at fault, and that the statement either caused economic loss or falls into a category where that proof is not needed. The statement must be one of fact, not opinion, and statutes add rules on the filing deadline, the truth defense, retractions and damages.

Sources1Ravnikar v. Bogojavlensky, 438 Mass. 627 (2003)2Scholz v. Delp, 473 Mass. 242 (2015)

Defamation lawsuits between private parties are civil claims for damages. A criminal group-libel law remains on the books: G.L. c. 272, § 98C punishes publishing false written or printed material meant to maliciously promote hatred of a group because of race, color or religion, with a fine of up to $1,000, up to one year in jail, or both, and only the attorney general or a district attorney can bring the case. In criminal libel prosecutions, truth is a defense unless actual malice is proved (G.L. c. 278, § 8). In 2015 the Supreme Judicial Court struck down a separate criminal law on false statements about political candidates and ballot questions (G.L. c. 56, § 42).

Sources3Mass. Gen. Laws c. 272, § 98C4Mass. Gen. Laws c. 278, § 85Commonwealth v. Lucas, 472 Mass. 387 (2015)

Actions for libel and slander must be started within three years after the cause of action accrues. The same deadline applies to written and spoken statements.

Source6Mass. Gen. Laws c. 260, § 4

Related guide: Statute of limitations for defamation in every state

Four kinds of statements are actionable without proof of economic loss: libel, statements that accuse someone of a crime, statements that say someone has certain diseases, and statements that may harm someone in their profession or business. In Ravnikar, the court held that falsely telling a patient that a doctor was dying of cancer fit the professional-harm category.

Source1Ravnikar v. Bogojavlensky, 438 Mass. 627 (2003)

Related guide: What defamation per se means

Under G.L. c. 231, § 59H, a party sued over its exercise of the constitutional right to petition, such as statements made to a government body or about an issue that body is considering, can file a special motion to dismiss, normally within 60 days of service of the complaint. Discovery is generally paused, and the statute directs the court to grant the motion unless the other side shows the petitioning had no reasonable factual support or arguable legal basis and caused it actual injury. A party that wins the motion is awarded costs and reasonable attorney's fees. The law is relatively narrow because it protects petitioning activity rather than all speech on public issues.

Sources7Mass. Gen. Laws c. 231, § 59H8Reporters Committee for Freedom of the Press, Anti-SLAPP Legal Guide: Massachusetts

Related guide: Anti-SLAPP laws by state

Before its answer is due, a libel defendant can send the plaintiff written notice of a planned retraction with a copy of it; if the retraction is published and the plaintiff does not accept the offer, the defendant can use that to reduce damages. If the defendant makes that offer and publishes a reasonable retraction within a reasonable time after the plaintiff's written notice, the defendant can try to prove good faith and lack of actual malice, and unless that proof is rebutted the plaintiff recovers only actual damages. The same statute bars punitive or exemplary damages in all libel and slander cases.

Source9Mass. Gen. Laws c. 231, § 93

A state statute lets a libel defendant prove the truth of the statement, and truth is a justification unless actual malice is proved; a federal appeals court has read 'actual malice' in that statute to mean ill will, not the constitutional standard. Statements of pure opinion are protected, and an opinion based on disclosed, non-defamatory facts is not actionable. Private plaintiffs must show at least negligence, while public officials and public figures must prove actual malice (knowing falsity or reckless disregard for the truth) by clear and convincing proof.

Sources10Mass. Gen. Laws c. 231, § 9211Noonan v. Staples, Inc., 556 F.3d 20 (1st Cir. 2009)2Scholz v. Delp, 473 Mass. 242 (2015)12Stone v. Essex County Newspapers, Inc., 367 Mass. 849 (1975)1Ravnikar v. Bogojavlensky, 438 Mass. 627 (2003)

Stalking under G.L. c. 265, § 43 is a willful and malicious pattern of conduct aimed at a specific person that seriously alarms or annoys them and would cause a reasonable person substantial emotional distress, combined with a threat meant to put them in imminent fear of death or bodily injury. The law expressly covers conduct and threats by email, internet communications, instant messages and other electronic devices. The base penalty is up to five years in state prison, with mandatory minimum terms when the stalking violates certain court orders or is a repeat offense.

Source13Mass. Gen. Laws c. 265, § 43

Related guide: Cyberstalking laws explained

Criminal harassment under G.L. c. 265, § 43A(a) is a willful and malicious pattern of acts aimed at a specific person that seriously alarms them and would cause a reasonable person substantial emotional distress; it expressly includes email, internet communications and instant messages, and is punishable by up to 2.5 years in jail, a fine of up to $5,000, or both. Separately, a person facing harassment (as defined, usually three or more willful and malicious acts meant to cause and actually causing fear, intimidation, abuse or property damage) can ask a court for a civil harassment prevention order under G.L. c. 258E. Each order lasts up to one year but can be extended.

Sources14Mass. Gen. Laws c. 265, § 43A15Mass. Gen. Laws c. 258E, § 116Mass. Gen. Laws c. 258E, § 3

Related guide: Online harassment laws explained

G.L. c. 265, § 43A(b) makes it a crime to knowingly distribute nude, partially nude or sexual images of an identifiable person, including realistic computer-generated images, when the distribution causes physical or economic injury or substantial emotional distress. The person must act with intent to harm, harass, intimidate, threaten, coerce or cause distress, or with reckless disregard for the likely harm, the person's lack of consent and their reasonable expectation of privacy. Consent to creating an image is not consent to sharing it, and the penalty is up to 2.5 years in jail, a fine of up to $10,000, or both.

Source14Mass. Gen. Laws c. 265, § 43A(b)