What is a reputation worth? King Solomon wrote in Proverbs that “a good name is to be chosen rather than great riches.” For businesses, a positive reputation attracts better workers to companies, increases loyalty among customers, and adds intangible value to a company on the market. According to Richard Branson, founder of the Virgin Group of companies, “[i]f you do anything to damage either your own reputation or your company’s, you could destroy your business.” The problem with reputation is that while it clearly has value, it is nearly impossible to put a dollar amount on it. This has recently become painfully clear for plaintiffs in Texas defamation suits because the Texas Supreme Court has made it much more difficult to prove damages for reputational harm. As more people gain access to the internet and internet defamations become more prevalent, more plaintiffs will be faced with the question of how to prove that their invaluable reputation has been harmed and to what extent. Brady v. Klentzman and its four-justice dissent do not make it any easier and will only cause uncertainty. This article proposes a legislative solution based on statutory damages awards from copyright law to ensure that plaintiffs with actual injuries can receive actual compensation even when it is difficult to prove their injury. Where a plaintiff has met his burden for proving defamation, then a court could presume damages according to the legislature’s guidance.
Austin Brakebill, What’s in a Name?: Proving Actual Damages for Reputational Harm in Texas Defamation Cases Will Only Get Harder, 71 SMU L. Rev. 583 (2018)