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Federal Libel Ruling Could Spell Trouble for Reporters.

Truth has always been considered an important and absolute defense against a lawsuit for defamation in state and federal courts across the land.

Until last Friday that is, when a federal appeals court in Boston tossed the truth defense into a tizzy with a novel -- and scary -- ruling in a non-media libel case.

The First U.S. Circuit Court of Appeals held that even when statements about misconduct are true they could form the basis for libel against a private individual if actual malice can be proven.

It based the finding on a 107-year-old Massachusetts law and court case defining actual malice as the use of truth for "malicious intention."

The appellate ruling overturned a federal district court's dismissal of the libel suit by a former sales director of Staples against the office supply company for circulating an email to 1,500 employees announcing he had been fired for padding his expense account and ignoring the firm's code of ethics.

The sales director, Alan S. Noonan, contended that even though an internal investigation determined he had violated the company's travel and expense policy, the e-mail went beyond the need to notify others in Staples and that it was meant to hurt his reputation by implying he had engaged in grave misconduct.

The appeals court said there's no question the statements in the e-mail were true but that Noonan was entitled to a trial on the question of whether Staples engaged in actual malice and deliberately wanted to cause him ill will.

The introduction of the actual malice standard into a private-party libel case took some legal experts by surprise.

Previously, it had been largely restricted to public-figure libel action, and had been defined by the U.S. Supreme Court in the landmark 1964 New York Times vs. Sullivan case as knowing a statement about a person was false and publishing it anyway, or recklessly disregarding the truth.

The stark difference in the Staples case is that the statement about the reason for Noonan's firing wasn't false. It was true.

Furthermore, by definition, defamation cases are based on false statements against a person, not truthful statements.

That's why the truth has long been considered an absolute defense to an action for defamation.

Yet the appeals court said the Staples e-mail could be considered libelous if Noonan could prove Staples intended to cause grave harm to his reputation by truthfully telling so many other employees about why he was dismissed.

Staples contended that the intent of the e-mail was not to harm Noonan's reputation but rather to make a point to other employees about the need to comply with the company's travel and expense policy.

In the context of traditional libel law, the appeals court decision raises alarm bells. If the truth is no longer an absolute defense against defamation claims, the news media as well as others could face an increase in litigation.

More importantly, it could chill aggressive reporting of tough stories for fear that a private individual might end up suing the media even when the published facts are true.

After all, the media is in the business of uncovering the truth. And the truth can sometimes hurt. Certainly there are people in the news who are embarrassed by the truth and who would like to fight back if they had a legal way to do so.

For the sake of serving the truth, let's hope this appeals court decision doesn't end up quashing it.
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Author:Ketter, William B.
Publication:Editor & Publisher
Geographic Code:1USA
Date:Feb 19, 2009
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