Elizabeth Elving, ‘The Online Defamation Dilemma: Adapting an Age-old Doctrine to the Reality’

“… Section II traces the history behind the prior restraint doctrine, the formation of the modem rule, and how courts have managed the countervailing priorities of reputation and free speech. While often presented as a First Amendment matter, the controversy dates back to the courts of early modem England, which produced the prior restraint doctrine and the maxim that ‘equity will not enjoin a libel’. American courts have adopted these doctrines, and applied them to varying degrees. Now that technology has utterly transformed the way that information spreads, more courts are reconsidering the once-ironclad no-injunction rule. Section III examines how digital age innovation has disrupted the defamation versus free speech debate. The Internet and social media have transformed all forms of modern speech, including libel. Section Ill considers if and how the traditional prior restraint doctrine can be applied to this radically new landscape, where victims of online libel are less likely to obtain damages, and Internet platforms are largely shielded from liability. As Section III explains, the lack of legal remedies for online defamation plaintiffs is one of the major arguments in favor of revisiting the traditional no-injunction approach that the prior restraint doctrine would seem to demand. Section IV elaborates on the debate over the modem rule, both among legal thinkers and in the courts …”

Elizabeth Elving, The Online Defamation Dilemma: Adapting an Age-old Doctrine to the Reality, 104 Marquette Law Review 543 (2020).

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