Traditionally, defamation plaintiffs are not entitled to injunctive relief. However, the wide use of Internet raised questions of whether injunctive relief in some circumstances are permissible for online libel cases. After all, it is not so difficult for a blogger to take down a defamatory post. If the post proves to be false and defamatory, we have reasons to argue that they should disappear. “Although the Supreme Court has never held that an injunction is a permissible remedy for defamation, the past decade has seen a veritable surge in injunctions directed at defamatory speech, especially speech on the Internet. Despite this surge, courts have not clearly articulated why injunctions are permissible under the First Amendment and consistent with long-standing principles of equity. As a result, many judges—and scholars—remain confused about the availability and proper scope of injunctive relief in defamation cases.” See more at Freedom of Speech, Defamation, and Injunctions.

Some worry that injunctive relief might harm the marketplace of ideas online and freedom of speech. “You could have default judgments against absent defendants, with the plaintiff trying to then enforce the injunction against a third-party publisher. (Section 230 blocks that strategy anyway, but doesn’t change the fact that the injunction shouldn’t have been issued in the first place.) Even if we limit injunctive relief strictly to jury verdicts, we have to remember juries’ error rate. With the preponderance-of-the-evidence standard, variations in juries, judges, attorney skill, and basic human fallibility, we end up with some — for lack of a better term — bad verdicts.” See more at Online Defamation, Injunctive Relief, and the Future of Prior Restraint.

Recently, there is a Texas Supreme Court case on this issue: Kinney v. Barnes. The Court recognized that prior restraint is disfavored by both U.S. and Texas Constitutions. The Court held that “while a permanent injunction requiring the removal of posted speech that has been adjudicated defamatory is not a prior restraint, an injunction prohibiting future speech based on that adjudication impermissibly threatens to sweep protected speech into its prohibition and is an unconstitutional infringement on Texan’s free-speech rights under Article I, Section 8 of the Texas Constitution.” The Court held that the removal of speech that has been adjudicated defamatory does not chill protected speech but prohibitive injunctions disallowing its repetition does chill protected speech. Read more about analysis of this opinion at New Remedy for Online Defamation.



Leave a Reply