Damage Awards and Internet Defamation

Recent years have witnessed a trend toward substantially higher damage awards in internet defamation cases than those involving traditional media. These higher awards are largely due to the recognition that the internet’s instantaneous, borderless, and far-reaching mode and extent of publication has tremendous power to harm reputation. Once a message enters cyberspace, it is available to millions of people worldwide. Messages can then be instantly republished at the push of a button, leading to potentially limitless replication.

Higher awards are also attributable to questionable assumptions about the credibility of internet speech. Although the internet enables authors to disseminate their message to a wider audience, readers must still assess the believability of the message. Today, most writing on the internet is viewed with at least some skepticism, particularly in unmoderated forums where anonymous posters have free reign. While courts acknowledge that widely disseminated internet speech may not attract high damages if readers are unlikely to give it credence, courts have declined to apply theories about how credibility is evaluated in traditional media defamation cases to the internet defamation context. Instead, courts have assumed that readers are unlikely to discount the credibility of internet speech even where it is anonymous, rife with hyperbole and grammatical errors, or posted in forums, chat rooms, or on blogs of questionable authority. This assumption is at odds with traditional conceptions of credibility that associate the influence of libel with its tenor, quality of writing, and its author’s identity.

This paper questions this assumption and argues that although courts must remain cognizant of the internet’s unique mode of communication, traditional conceptions of credibility should still influence damage award assessments in the internet defamation context. This is necessary to ensure that courts do not award damages in excess of actual reputational harm, which risks encouraging excessive litigation, over-penalizing defendants, and unduly curtailing freedom of expression on the internet.

Download the article from SSRN at the link.