New Remedy for Online Defamation

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In a precedent-setting move, the Texas Supreme Court recently ruled in Kinney v. Barnes that a court may order the author of online defamatory material to delete their internet posting, but cannot stop him or her from posting the same statement again elsewhere.

The stipulation in regards to future posts defends the constitutional right to free speech. Justice Debra Lehrmann stated that “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. It is accurately characterized as a remedy for one’s abuse of the liberty to speak and is not a prior restraint.”

In his suit, Kinney, who was suing Barnes for “implicating Kinney in a kickback scheme” during his years working for BCG as a legal recruiter, sought a permanent injunction to have the defamatory statements removed. Barnes, however, won on appeal that such a relief would violate his first amendment rights.

The unprecedented nature of internet defamation has continued to stymie legislator’s efforts to draft a solution, but this ruling breaks new ground by including both an injunction on past defamation and an award of damages to the victim.

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