Internet Users Post Defamatory Statements at Their Own Risk

As a general rule, the law of defamation provides recourse to a plaintiff who demonstrates that a defendant communicated to a third person a false statement about the plaintiff that tended to harm the plaintiff’s reputation in the community. Whether a defamation plaintiff must also always provide “concrete proof” that third parties actually lowered their estimation of plaintiff, and that plaintiff suffered either emotional or pecuniary harm as a result, is less clear. Until recently, this murky area of law had experienced a trend away from the concept of presumed damages, a doctrine that in certain circumstances permitted a plaintiff to assert a cause of action for defamation despite the absence of damages. At the same time, the use of the Internet, e-mail and other electronic means of communication has proliferated exponentially.

A recent case before the Appellate Division confronted both of these issues, and examined whether the trend away from presumed damages required a private-figure plaintiff, defamed online, to demonstrate actual damages in order to pursue his claims. The case, W.J.A. v. D.A., No. A-0762-09T3 (App. Div. Sept. 27, 2010), reveals that reports of the demise of the doctrine of presumed damages have been greatly exaggerated (at least in New Jersey). The decision demonstrates that the doctrine remains viable in certain cases, and that, in certain circumstances, a litigant’s failure to present proof of actual damages, standing alone, will not necessarily preclude a claim for defamation.