The Digital Defamation Damages Dilemma

Abstract

The size and unpredictability of damages awards in defamation cases is commonly understood to be one important factor in the law’s chilling effect on speech. Although England's Defamation Act 2013 was primarily aimed at addressing this chilling effect, it did little to reform remedies, and the nominal cap on general damages has now risen to roughly £300,000. This paper builds on existing criticisms of the principles governing the assessment of defamation damages, and argues that the issue is becoming more pressing as the landscape of defamation litigation is reshaped by the internet age. Modern libel cases increasingly involve statements published not by traditional media organizations, but by ordinary individuals using the internet to air their grievances or express their views. Most of these defendants have more limited financial resources than media companies, and less awareness of the legal problems their online comments might cause, or of how to avoid or respond to those problems. But real harm can be caused to claimants’ personal and professional reputations by online criticism, and it can be nearly impossible to remove the traces of defamatory comments from the internet, even if the victim sues successfully. In this new environment, existing problems with defamation damages can have even more insidious implications for freedom of speech. Judges often seem incapable of properly contextualizing the sums of money they award against individual defendants, frequently describing awards of thousands or tens of thousands of pounds as ‘modest’ or ‘small’, even in cases where there is no evidence of actual loss. Claimants should be adequately compensated for their losses as far as possible, but damages awards that risk bankrupting defendants for posting careless comments online cannot be appropriate. If this issue is not addressed, there is a risk that important online discourse will be seriously chilled.