A decision from the Texas Supreme Court may have provided those victims of defamation on the Net a new remedy. Maybe.
The Court set a precedent by ruling that the author of defamatory content may be required to delete it. Problem is, they can repost it elsewhere. But the award of damages can be significant and act as sufficient deterrence from further defamatory publishing.
Rather than a permanent injunction to restrict future posts—which would be an unconstitutional prior restraint on free speech—the court’s award of damages to the victim is the right way to deter any future defamation, wrote Justice Debra Lehrmann in Kinney v. Barnes.
“Kinney would have the trial court order Barnes to remove the statements at issue from his websites (and request that third-party republishers of the statements do the same) upon a final adjudication that the statements are defamatory. Such an injunction does not prohibit future speech, but instead effectively requires the erasure of past speech that has already been found to be unprotected,” said the Aug. 29 opinion. “It is accurately characterized as a remedy for one’s abuse of the liberty to speak and is not a prior restraint.”
Lawyers familiar with the case said that the high court’s finding gives defamation victims a new remedy.
“With courts still grappling with how to handle speech on the Internet, this is a decisive ruling saying, ‘Yes, removal is appropriate if it’s found the posting is defamatory,'” said First Amendment lawyer Laura Lee Prather, a partner in Haynes and Boone in Austin, who wasn’t involved in the case.
Martin J. Siegel, who represents petitioner Robert Kinney, wrote in an email, “We think it sets an important precedent: A person can’t destroy someone else’s reputation online and have that stay on the Web forever, as the other side wanted. And thanks to this decision, a defendant can’t hide behind the old and now defunct rule that injunctions are never available in defamation cases.”
Before, there was “no avenue for relief” for a business that saw “untruthful statements posted about them online,” said Brian J. Levy, an associate with Kennard Blankenship Robinson in Houston, who represented the Texas Apartment Association, an amicus curiae in the case.
“The Supreme Court, I think, did a very, very good job of laying out the law and the topic, and staying away from the First Amendment issues, but still creating a right to relief,” said Levy.
The respondents in the case are Andrew Harrison Barnes and his three companies, BCG Attorney Search Inc., Employment Crossing Inc. and JD Journal Inc. Respondents’ attorney Dale L. Roberts, a partner in Fritz, Byrne, Head & Harrison, wrote in an email that “we strongly disagree” with the court’s determination.
“Prior to this case, courts have consistently recognized that damages, not injunctions, are the sole remedy in defamation actions. Although we are still evaluating our next steps on appeal, there are multiple other legal deficiencies that justify dismissal of Mr. Kinney’s baseless claims,” wrote Roberts.