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Thursday, September 11, 2014

Texas Courts Can Order Removal of Defamatory Material Posted Online

So holds the Texas Supreme Court in Kinney v. Barnes. The full text of the opinion is available here. Texas Lawyer reports that court orders for the removal of online content is a new remedy for defamed parties. Texas Lawyer goes on to note that the opinion still holds that courts cannot enjoin any future online speech since that would be an unlawful prior restraint, something that the Supreme Court has roundly rejected (see footnote 7 of the opinion).

From the opinion:
In this case, Kinney’s request for injunctive relief may be broken down into two categories. First, as reflected in the pleadings, 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 in the context in which it was made. As such, it is accurately characterized as a remedy for one’s abuse of the liberty to speak and is not a prior restraint.
While injunctive relief is typically not available in defamation cases, ordering the removal of posted defamatory material seems to be a sensible exception to the general rule. Were the statement to remain online, courts would need to estimate the continuing damage the statement could cause, or re-adjudicate the case if harm continued to occur as a result of the statement. Ordering the removal of a defamatory statement may at least partially mitigate some of this continuing harm.

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