With the advent - and ubiquity - of the internet and social media has come an exponential increase in the potential for the publication of negative statements about individuals, corporations, or other entities. While such statements may hurt feelings, thanks to the First Amendment they may not provide the basis for legal action in Massachusetts unless they meet the standard for defamation, which encompasses libel (written words) and slander (spoken words). See Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-30 (2003). To succeed, a defamation plaintiff must prove the following: (1) the defendant made a statement "of and concerning" the plaintiff, to a third party; (2) the statement could damage the plaintiff's reputation in the community; (3) the defendant was at fault in making the statement, whether negligently where the subject is a private individual or with actual malice in the case of a public official or public figure; and (4) the statement caused the plaintiff economic harm or otherwise fits four specific criteria to be actionable without proof of economic loss. Scholz v. Delp, 473 Mass. 242, 249 (2015). Regarding (3), above, the First Amendment grants greater protection to statements made about public figures or about matters of public concern, making defamation claims in those contexts significantly more difficult to prove.
The "discovery rule" delays the three-year statute of limitations period for plaintiffs to bring tort claims "where the plaintiff did not know or could not reasonably have known that he or she may have been harmed by the conduct of another" until the plaintiff gains actual or constructive knowledge of the wrong. See Koe v. Mercer, 450 Mass. 97, 101 (2007). In an opinion issued last week, the Supreme Judicial Court broadened the discovery rule to include knowledge of the responsible person's identity, reasoning that such knowledge "seems implicit in the requirement that a plaintiff know that the defendant's conduct caused him harm; without such knowledge, the plaintiff does not know whom to sue." Harrington v. Costello, 467 Mass. 720, 2014 WL 1362630 at *4 (April 9, 2014)
As a society, we continue to realize the potential for on-line conduct to have real-world ramifications - something the Middlesex Superior Court further illustrated recently in the context of personal jurisdiction - in the first such opportunity for a Massachusetts trial court to do so. In Taylor v. Taylor, MICV2012-01222, 2013 WL 5988569 (Mass. Super. Ct. 2013), a Massachusetts couple ("Plaintiffs"), alleged their daughter-in-law ("Defendant"), who lives in Florida, engaged in a coordinated campaign to defame them and harm their Massachusetts-based real estate business after she lost a series of motions in divorce proceedings against the Plaintiffs' son in Florida. In their Complaint, the Plaintiffs claimed that Defendant, with the help of a private investigator (also a defendant, with his corporation), made a series of identical on-line postings on consumer websites, purportedly written by a disgruntled former employee and warning potential Massachusetts real estate customers to "[a]void [the Plaintiffs' real estate company] at all costs unless you want to fall victim to another couple [J]ewish scammers." According to the Complaint, these postings further claimed that Plaintiffs both take advantage of their employees and "perpetuate the brainwashing of thousands of innocent, hard working people."