Howell v. Enterprise Pub. Co., LLC

• Decision Date: 01 October 2008
• Docket Number: No. 07-P-1603.,07-P-1603.
• Citation: 893 N.E.2d 1270,72 Mass. App. Ct. 739
• Parties: James F. HOWELL v. The ENTERPRISE PUBLISHING COMPANY, LLC, & others.<SMALL><SUP>1</SUP></SMALL>
• Court: Appeals Court of Massachusetts

893 N.E.2d 1270

72 Mass. App. Ct. 739

James F. HOWELL v. The ENTERPRISE PUBLISHING COMPANY, LLC, & others.¹

No. 07-P-1603.

Appeals Court of Massachusetts, Plymouth.

Argued May 19, 2008.

Decided October 1, 2008.

Jonathan M. Albano, Boston (Laura K. Langley with him) for the defendants.

John G.H. Coster, Boston, for the plaintiff.

Present: KATZMANN, MEADE, & SIKORA, JJ.

MEADE, J.

The defendants, The Enterprise Publishing Company, LLC, and reporters Elaine Allegrini and Allan Stein (collectively, Enterprise), obtained leave from a single justice of this court, see G.L. c. 231, § 118, to pursue this interlocutory appeal. Enterprise claims error in the denial of its motion for summary judgment as to plaintiff James F. Howell's defamation, invasion of privacy, and intentional infliction of emotional distress claims. We affirm in part and reverse in part.

1. Background. The genesis of this matter occurred with Enterprise's publication of eleven newspaper accounts reporting on Howell's termination from his employment as the superintendent of the sewer department of the town of Abington (town). Howell's termination followed an investigation by the town and a closed hearing before the Abington sewer commission (commission) regarding his alleged improper use of town computers. The commission determined that Howell had used town computers for personal business, including storing business records for his private radiator company and inappropriate images, as well as sending inappropriate electronic mail messages (e-mail) to a subordinate. The commission did not sustain a conflict of interest allegation.

Howell appealed the termination to the board of selectmen (board) of Abington. The board held a public hearing on the matter, which was locally televised. At the conclusion of the hearing the board upheld the commission's decision to terminate Howell. Howell filed suit, which is detailed, infra.

2. Defamation claims. Howell alleges that Enterprise defamed him by: (1) accusing him of storing pornography on his town-owned computers; (2) associating his conduct with that of one Frank Savino without adequately differentiating between the materials kept by each man, thereby insinuating that Howell had child pornography (and other hard-core pornographic materials) on his computers; (3) inaccurately reporting that a conflict of interest charge against him had been sustained and upheld; (4) implying that he had sexually harassed a female subordinate; (5) implying that he was fraudulently collecting unemployment benefits; and (6) implying that he spent the majority of his time at work downloading pornography and working on personal business. Enterprise moved for summary judgment as to the defamation claim, arguing generally that the information published was substantially true as well as protected by the so-called "fair report privilege." The judge denied Enterprise's motion, concluding that issues of material fact regarding whether the articles were fair and accurate made summary judgment inappropriate. Enterprise appeals and we address each alleged defamatory statement separately.

A. Standard of review. "The purpose of summary judgment is to decide cases where there are no issues of material fact without the needless expense and delay of a trial followed by a directed verdict." Correllas v. Viveiros, 410 Mass. 314, 316, 572 N.E.2d 7 (1991). To that end, summary judgment is appropriate only "where there is no genuine issue of material fact, and when, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law." Gray v. Giroux, 49 Mass.App.Ct. 436, 438, 730 N.E.2d 338 (2000). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). "[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in [rule] 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). Our review is de novo, see Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.1, 686 N.E.2d 1303 (1997); we consider the record and the legal principles involved without deference to the judge's reasoning. See Clean Harbors, Inc. v. John Hancock Life Ins. Co., 64 Mass.App. Ct. 347, 357 n.9, 833 N.E.2d 611 (2005).

B. Elements of defamation. Defamation is the intentional or negligent² publication to a third person, without privilege to do so, of a false statement of fact that "discredits the plaintiff `in the minds of any considerable and respectable segment in the community.'" Draghetti v. Chmielewski, 416 Mass. 808, 811, 626 N.E.2d 862 (1994), quoting from Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 751, 400 N.E.2d 847 (1980). See Ravnikar v. Bogojavlensky, 438 Mass. 627, 630, 782 N.E.2d 508 (2003), quoting from Restatement (Second) of Torts § 559 (1977) ("A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him"). The allegedly defamatory statement need not be an explicit assertion. "An insinuation may be as actionable as a direct statement." Mabardi v. Boston Herald-Traveler Corp., 347 Mass. 411, 413, 198 N.E.2d 304 (1964), quoting from Thayer v. Worcester Post Co., 284 Mass. 160, 162, 187 N.E. 292 (1933). "The existence of defamatory innuendo is a question of fact for a jury to consider." Reilly v. Associated Press, 59 Mass.App.Ct. 764, 774, 797 N.E.2d 1204 (2003).

To be actionable, the allegedly defamatory utterance must be false. Milgroom v. News Group Boston, Inc., 412 Mass. 9, 12, 586 N.E.2d 985 (1992). However, a factual statement need not state the precise truth. Reilly, supra at 770, 797 N.E.2d 1204. "[W]hen a statement is substantially true, a minor inaccuracy will not support a defamation claim." Ibid. See Murphy v. Boston Herald, Inc., 449 Mass. 42, 51 n. 10, 865 N.E.2d 746 (2007). "[A]n objective test — i.e., inquiry into a reasonable recipient's understanding of the words rather than the speaker's intent — has been used over the years to prove that words are defamatory." New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 479-480, 480 N.E.2d 1005 (1985). "A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it." Id. at 480, 480 N.E.2d 1005, quoting from Washington Post Co. v. Chaloner, 250 U.S. 290, 293, 39 S.Ct. 448, 63 L.Ed. 987 (1919). Where a communication "is susceptible of both a defamatory and nondefamatory meaning, a question of fact exists for the jury." Draghetti v. Chmielewski, supra. See Jones v. Taibbi, 400 Mass. 786, 792, 512 N.E.2d 260 (1987). In determining whether a communication is defamatory, it must be examined as a whole. See Foley v. Lowell Sun Publishing Co., 404 Mass. 9, 11, 533 N.E.2d 196 (1989). Although a plaintiff may not "lift" a portion of the publication out of context, "a defendant who publishes a defamatory headline is not immune simply because the text of the article is harmless." Nolan & Sartorio, Tort Law § 7.2, at 172 (3d ed. 2005).

C. The alleged defamatory statements. i. Pornographic materials. In numerous places throughout the eleven articles written about Howell and published between May 11 and November 29, 2005, Enterprise reported that pornographic materials were found on Howell's town-owned computers. Such references included articles entitled "Officials find porn on town computer," "Abington official fired over computer porn," and "Porn at town hall," as well as passages stating that the images included "nude and scantily clad women and other sexually suggestive subjects," and "[t]he images included ... nude and scantily clad women ... and other material of a sexual nature." Howell disputes the assertions that the pictures found on his computers were pornographic. He argues that none of the images depict sex acts, show full or frontal nudity, or are intended to arouse one's sexual desire or appeal to the prurient interest. The ostensibly comical as opposed to sexual nature of the images, he claims, renders false Enterprise's repeated characterization of the materials as pornographic.³ Enterprise responds that the articles are substantially true. We disagree.

Arguing that there was no material falsity in referring to the materials as pornographic, Enterprise notes that the commission sustained the charges accusing Howell of having images of a pornographic nature on his computers and that such ruling was upheld by the board. However, it is not of itself a defense that Enterprise's information sources may have described the images as pornographic. "Absent a privilege, `the republisher of a defamatory statement is "subject to liability as if he had originally published it."' Liability for a defamatory statement may not be avoided `merely [by] adding a truthful preface that someone else has so stated' " (citations omitted). Jones, 400 Mass. at 792, 512 N.E.2d 260. See Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 36, 478 N.E.2d 721 (1985). Here, there is a genuine issue of material fact as to whether the images found on Howell's computers were pornographic as the word is commonly understood. A jury should be allowed to consider whether Enterprise's articles on that point were false. See Friedman v. Boston Broadcasters, Inc., 402 Mass. 376, 381-382, 522 N.E.2d 959 (1988).

ii. Association with Savino. In seven of the articles written about Howell, Enterprise made references to Savino, a former town official in East Bridgewater who was found to possess child pornography and other hard-core pornographic materials on his...