Law Commons^™

Machine Speech: Towards A Unified Doctrine Of Attribution And Control, Brian Sites

University of Miami Law Review

Like many courts across the country in 2023, courts in the Eleventh Circuit were met with novel claims challenging ChatGPT and other artificial intelligence tools. These cases raise common questions: How should courts treat the speech of machines? When a machine generates allegedly defamatory material, who is the speaker—mortal or machine? When a machine generates expressive creations, who is the artist, and does that shape copyright eligibility? When a machine makes assertions about reality through lab analyses and other forensic reports, who is the accuser, and how does the answer impact a defendant’s rights at trial? Should those answers stem …

A How-To Guide For When Your Favorite Meme Account Is Defamed: Involuntary Public Figures In Defamation, Privacy, And Intentional Infliction Of Emotional Distress Law, Elizabeth Mcmullen

Catholic University Journal of Law and Technology

The world we live in today has changed infinitely since the inception of our Constitution and early legal doctrine. Our Founding Fathers could never have predicted that we would one day live in a world where anyone living in any corner of the globe could garner millions of followers. Whether someone finds him or herself to be particularly proficient in writing Harry Potter fan fiction or to be the best creator of memes with an American Girl Doll focus, ordinary citizens could find themselves suddenly jolted out of quiet anonymity by one unexpectedly viral post. Despite years of Instagram micro-fame, …

Defamation 2.0, Cortelyou C. Kenney

Cornell Law Faculty Publications

There is a literal prohibition in the media bar that media lawyers cannot represent plaintiffs in suits for defamation. The stated principle behind this rule—a rule that can result in excommunication from the premier media law organization if it is violated—is that playing both sides of the defamation game is disloyal to traditional media actors because any chance of victory could inadvertently distort the law of defamation to increase the risk of frivolous suits against media outlets or other innocent third parties. But has the maxim finally gone too far?

Fueled by a new model where media profits are driven …

Republication Liability On The Web, Jeffrey Standen

Marquette Law Review

The tort of defamation evolved in an era where defamatory speech was published in books, magazines, newspapers, or other printed documents. The doctrines that are antecedent to the tort, such as publication, fault, defamation per se, presumed damages, and republication liability, similarly presumed that most defamation would appear in written form in a published work. Similarly, the significant limitations on defamation liability that were produced by a succession of Supreme Court constitutional precedent, including restrictions on prior restraint, heightened fault standards, expanded “public” classes, the “fact/opinion” dichotomy, and the “truth/substantial truth” burden shifting, also were based on a publishing world …

Absolute Publishing Power And Bulletproof Immunity: How Section 230 Shields Internet Service Providers From Liability And Makes It Impossible To Protect Your Reputation Online, Victoria Anderson

Seattle University Law Review SUpra

No abstract provided.

Freedom Of Expression V. Social Responsibility On The Internet: Vivi Down Association V. Google, Raphael Cohen-Almagor, Natalina Stamile

Seattle Journal of Technology, Environmental & Innovation Law

The aim of the article is to reflect on Google’s social responsibility by analyzing a milestone court decision, Vivi Down Association v. Google, that took place in Italy, involving the posting of an offensive video clip on Google Video. It was a landmark decision because it refuted the assertion that the Internet knows no boundaries, that the Internet transcends national laws due to its international nature, and that Internet intermediaries, such as Google, are above the law. This case shows that when the legal authorities of a given country decide to assert their jurisdiction, Internet companies need to abide by …

The Contribution Of Eu Law To The Regulation Of Online Speech, Luc Von Danwitz

Michigan Technology Law Review

Internet regulation in the European Union (EU) is receiving significant attention and criticism in the United States. The European Court of Justice’s (ECJ) judgment in the case Glawischnig-Piesczek v. Facebook Ireland, in which the ECJ found a take-down order against Facebook for defamatory content with global effect permissible under EU law, was closely scrutinized in the United States. These transsystemic debates are valuable but need to be conducted with a thorough understanding of the relevant legal framework and its internal logic. This note aims to provide the context to properly assess the role the ECJ and EU law play …

Review Law: New York Defamation Applied To Online Consumer Reviews, Ian Lewis-Slammon

St. John's Law Review

(Excerpt)

In early July 2017, Michelle Levine booked her first and only appointment with gynecologist Dr. Joon Song for an annual exam. Ms. Levine had a dissatisfying experience with the office. She claims that Dr. Song’s office did not follow up with her for almost a month, and that when she called to ask about the results of a blood test, Dr. Song’s staff falsely informed her that she tested positive for herpes. To top it off, Ms. Levine alleges that the office overcharged her. Following this experience, Ms. Levine did what many others do when dissatisfied with a product …

Automation In Moderation, Hannah Bloch-Wehba

Faculty Scholarship

This Article assesses recent efforts to encourage online platforms to use automated means to prevent the dissemination of unlawful online content before it is ever seen or distributed. As lawmakers in Europe and around the world closely scrutinize platforms’ “content moderation” practices, automation and artificial intelligence appear increasingly attractive options for ridding the Internet of many kinds of harmful online content, including defamation, copyright infringement, and terrorist speech. Proponents of these initiatives suggest that requiring platforms to screen user content using automation will promote healthier online discourse and will aid efforts to limit Big Tech’s power.

In fact, however, the …

Combating Fake News In Social Media: U.S. And German Legal Approaches, Ryan Kraski

St. John's Law Review

(Excerpt)

When asking how fake news in social media can be combated under U.S. and German law, one must first take the systems’ most fundamental differences into consideration. U.S. law is characterized by its federal structure, the interaction of state laws often with the federal, U.S. Constitution, usage of pretrial discovery, as well as the role of juries in calculating damages. In contrast, Germany, as a civil law system, is characterized by its usage of separate legal actions to acquire information, lack of pretrial discovery, and broader array of available remedies, none of which allow for punitive damages. Through a …

Defamation And Privacy In The Social Media Age: What Would Justice Brennan Think?, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Say What You Want: How Unfettered Freedom Of Speech On The Internet Creates No Recourse For Those Victimized, Wes Gerrie

Catholic University Journal of Law and Technology

In today’s society, virtually everyone relies on online posts in order to make decisions—from what products to purchase to what restaurants to visit. The introduction and increase of online communication has made posting reviews online a simpler, easier, and more efficient process. However, the increase of online communication has threatened the delicate balance between free speech and harmful speech.

A tangled web of recent case law and federal law exists which aggressively protects the free speech of online reviewers. The law has carved out immunity for the website operators that host an online reviewer’s comments, which in turn makes an …

Cyberspace…The Final Frontier: How The Communications Decency Act Allows Entrepreneurs To Boldly Go Where No Blog Has Gone Before, Aaron Jackson

Oklahoma Journal of Law and Technology

No abstract provided.

Trending Now: The Role Of Defamation Law In Remedying Harm From Social Media Backlash, Cory Batza

Pepperdine Law Review

Defamatory comments on social media have become commonplace. When the online community is outraged by some event, social media users often flood the Internet with hateful and false comments about the alleged perpetrator, feeling empowered by their numbers and anonymity. This wave of false and harmful information about an individual’s reputation has caused many individuals to lose their jobs and suffer severe emotional trauma. This Comment explores whether the target of social media backlash can bring a successful defamation claim against the users who have destroyed their reputations on and offline. Notably, one of the biggest hurdles these plaintiffs will …

Celebrities’ Expansive “Right Of Publicity” Infringes Upon Advertisers’ First Amendment Rights, Jon Siderits

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Section 230 Of The Communications Decency Act: The True Culprit Of Internet Defamation, Heather Saint

Loyola of Los Angeles Entertainment Law Review

This Note highlights the growing concern of Internet defamation and the lack of viable legal remedies available to its victims. Internet defamation is internet speech with the purpose to disparage another’s reputation. At common law, a victim of alleged defamation has the right to file suit against not only the original speaker of the defamatory statements, but the person or entity to give that statement further publication as well. In certain cases even the distributor, such as a newspaper stand, can be held liable for a defamation claim. However, liability due to defamatory speech on the Internet is quite different. …

Reputational Privacy And The Internet: A Matter For Law?, Elizabeth Anne Kirley

PhD Dissertations

Reputation - we all have one. We do not completely comprehend its workings and are mostly unaware of its import until it is gone. When we lose it, our traditional laws of defamation, privacy, and breach of confidence rarely deliver the vindication and respite we seek due, primarily, to legal systems that cobble new media methods of personal injury onto pre-Internet laws. This dissertation conducts an exploratory study of the relevance of law to loss of individual reputation perpetuated on the Internet. It deals with three interrelated concepts: reputation, privacy, and memory. They are related in that the increasing lack …

Cyberharassment And Workplace Law, Helen Norton

Publications

No abstract provided.

Silencing John Doe: Defamation & Discourse In Cyberspace, Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons-some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat these suits …

Federal Search Commission? Access, Fairness, And Accountability In The Law Of Search, Oren Bracha, Frank Pasquale

Frank A. Pasquale

Should search engines be subject to the types of regulation now applied to personal data collectors, cable networks, or phone books? In this article, we make the case for some regulation of the ability of search engines to manipulate and structure their results. We demonstrate that the First Amendment, properly understood, does not prohibit such regulation. Nor will such interventions inevitably lead to the disclosure of important trade secrets. After setting forth normative foundations for evaluating search engine manipulation, we explain how neither market discipline nor technological advance is likely to stop it. Though savvy users and personalized search may …

Defamation Via Hyperlinks: More Than Meets The Eye, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

Hyperlinks make the World Wide Web go round. They find and connect information and content from a wealth of sources on the web including, from time to time, defamatory material. Newton, the owner and operator of a website in British Columbia, posted an article entitled “Free Speech in Canada”. The article itself was not alleged to be defamatory of Crookes, a politician. However, it incorporated hyperlinks to other internet websites that contained defamatory material. Notwithstanding requests from Crookes and his lawyer, Newton refused to remove the hyperlinks. Did Newton’s act of hyperlinking to internet websites constitute “publication” of the defamatory …

Corporate Criticism On The Internet: The Fine Line Between Anonymous Speech And Cybersmear, Scot Wilson

Pepperdine Law Review

No abstract provided.

When Retweets Attack: Are Twitter Users Liable For Republishing The Defamatory Tweets Of Others?, Daxton R. Stewart

Daxton "Chip" Stewart

Under the republication doctrine, repeating false and defamatory statements has traditionally triggered liability for the repeater. However, some confusion has emerged regarding retweeting the posts of others on Twitter, the popular microblog site. Does retweeting the defamatory statement of another open the retweeter to liability? This article examines exceptions to the republication doctrine such as the single publication rule, the wire service defense, and the Communications Decency Act (CDA) to answer this question. A review of court opinions leads to the conclusion that Section 230 of the CDA provides a powerful shield for users of interactive computer services such as …

Access To Media All A-Twitter: Revisiting Gertz And The Access To Media Test In The Age Of Social Networking, Ann E. O'Connor

Federal Communications Law Journal

Plaintiffs' access to media has long been a factor in defamation cases, enabling courts to determine whether that plaintiff is a public figure who must meet the actual malice standard, or whether that plaintiff is a private figure worthy of greater protection from defamation. This component of the public-private distinction can no longer be applied with clear precision, given the advent of social networking and today's world of widespread media access. In light of the massive changes that have taken place in the media world, the access to media test must be revisited and appropriately retailored to avoid an inappropriate …

Craigslist, The Cda, And Inconsistent International Standards Regarding Liability For Third-Party Postings On The Internet, Peter Adamo

Pace International Law Review Online Companion

This Comment explores the nature and purpose of the Communications Decency Act (CDA), the legislative upbringing, and the application of the CDA to Craigslist. It compares the CDA to approaches taken abroad through legislation and judicial proceedings. It explains, contrary to the one other commentator to broach the subject matter, how the CDA continues to provide robust protection to Craigslist. Finally, it explores potential avenues for redrafting the CDA as well as the difficulties and trade-offs associated with implementing such change.

Cohen V. Google, Inc., Eirik Cheverud

NYLS Law Review

No abstract provided.

An Interpretive Framework For Narrower Immunity Under Section 230 Of The Communications Decency Act, Gregory M. Dickinson

Gregory M Dickinson

Almost all courts to interpret Section 230 of the Communications Decency Act have construed its ambiguously worded immunity provision broadly, shielding Internet intermediaries from tort liability so long as they are not the literal authors of offensive content. Although this broad interpretation effects the basic goals of the statute, it ignores several serious textual difficulties and mistakenly extends protection too far by immunizing even direct participants in tortious conduct.

This analysis, which examines the text and history of Section 230 in light of two strains of pre-Internet vicarious liability defamation doctrine, concludes that the immunity provision of Section 230, though …

Communication Indecency: Why The Communications Decency Act, And The Judicial Interpretation Of It, Has Led To A Lawless Internet In The Area Of Defamation, Colby Ferris

Barry Law Review

First, this article explores how law of defamation has been applied in the brick and mortar world, and how those same principles were applied to the cyber world. Next it looks at Congress’s legislation of defamation law on the Internet, and how that legislation has been applied in court. Finally, it evaluates the changing attitude toward that legislation, and changes Congress should consider making.

An Introduction To Jurisdictional Issues In Cyberspace, Dan Jerker B. Svantesson

Dan Svantesson

Imagine a state proclaiming that it will claim jurisdiction over, and apply its laws to, any website that can be accessed from a computer located in its territory. The response would perhaps be outrage from some. Others would point to the ineffective nature of such a rule, and yet others would perhaps view the model as infeasible. Indeed, when the Advocate-General’s office of Minnesota in the mid 90’s issued a statement that: ‘[p]ersons outside of Minnesota who transmit information via the Internet knowing that information will be disseminated in Minnesota are subject to jurisdiction in Minnesota courts for violations of …

Media Futures: A Review Essay On 'The Future Of Reputation', 'Tv Futures', And 'The Future Of The Internet And How To Stop It', Prometheus, Vol. 27 (3), P. 267-279., Matthew Rimmer

Matthew Rimmer

This review essay considers three recent books, which have explored the legal dimensions of new media. In contrast to the unbridled exuberance of Time Magazine, this series of legal works displays an anxious trepidation about the legal ramifications associated with the rise of social networking services. In his tour de force, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, Daniel Solove considers the implications of social networking services, such as Facebook and YouTube, for the legal protection of reputation under privacy law and defamation law. Andrew Kenyon’s edited collection, TV Futures: Digital Television Policy in Australia, explores …