I have a forthcoming article on the subject, called The Duty Not to Continue Distributing Your Own Libels, forthcoming later this year in the Notre Dame Law Review. (The title is a bit clunky, and I’d love to hear other suggestions; but I was hoping that the title to the article—unlike the clearer but less precise title to this post—better conveys that I’m talking here about a negative duty not to cause harm, and not a positive duty to affirmatively undo the harm.) I thought I’d serialize the article here; I’d love to hear feedback on it, since there is plenty of time for edits.
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Donna writes something false online about Paul—sincerely, even reasonably, believing it to be true. This absence of a mens rea keeps her from being liable for defamation.
Paul then promptly tells Donna that her post is false, and backs that with persuasive evidence; maybe it’s as simple as a case of mistaken identity. Yet Donna continues to keep her article (or blog post or social media post) online, now with “actual malice”—the knowledge that the statement was false, or at least recklessness about that possibility. Every day, the article is distributed to more readers, for instances ones that find it via a Google search.
Should Donna (and her employer[1]) be liable for defaming Paul, based on the continued distribution, even though not the initial publication? Or should she be immune from liability, even if she keeps the material up unmodified, because she wasn’t culpable at the time she made the statement? The answers, surprisingly, are unsettled.
Or say Donna accurately posts online that Paul has been convicted of a crime. Her statement, and her description of Paul’s actions, is a fair and accurate report of government proceedings, and is thus not libelous. Three months later, the conviction is reversed because there was insufficient evidence supporting it.
Paul informs Donna about that. Donna is now knowingly distributing an article online that is no longer a fair and accurate summary of the aggregate of the legal proceedings in the case. (As we’ll see below, reports that mention a conviction without mentioning the reversal are generally not covered by the fair report privilege.) Should Donna be liable for continuing to knowingly distribute the now-defamatory material?[2] The answer is likewise unsettled.
The Internet is a persistent medium, where defamation often causes damages through a steady drip-drip-drip of people finding items online each day, rather than through the short sharp shock of a traditional print publication. But our libel law developed when publishers printed something and it then left their control. In such situations, the only questions were whether the publishers were liable for the initial printing, and perhaps whether they should have an affirmative duty to publish a retraction. The question whether they should have a duty as to material that they were continuing to distribute rarely arose.[3] Yet that question is especially important today.
In this article, I discuss such liability for continuing to distribute material once one knows it’s libelous, and tentatively argue that there should indeed be such liability (properly bounded). It’s fair both to publishers and to the victims of the false statements, and consistent with First Amendment principles.
It’s authorized by a longstanding libel law principle applicable to real property owners, who can be liable for continuing to keep defamatory material on their property once they learn of its presence. It should apply in some measure to private-figure libel compensatory damages cases that are based on the defendant’s negligence, and not just to cases that are based on the defendant’s “actual malice.” And such liability shouldn’t be seen as contrary to the “single publication rule,” properly understood.
Such liability does impose some burden on those who have posted the statements, and that gives me pause. But that burden strikes me as on balance justifiable. It’s not far from the normal burden that modern libel law—sharply constrained by the First Amendment—generally imposes on speakers. And it’s suitably limited to scenarios where authors and publishers are practically able to remove or correct material that they have been informed is likely mistaken. Courts should recognize it under existing common-law principles, and state legislatures may institute it, too; I offer a sample statute below.
The liability should also extend, as I suggested above, to situations where a legally significant decision that suggests possible guilt is reversed, for instance when a prosecution leads to an acquittal, or a conviction is reversed on the merits. In that situation, publishers should have a duty not to continue hosting material that has become misleadingly incomplete in important ways, though they should be free to keep the original report up with an update indicating what later happened. And for these particular legal updates (unlike the other updates I discuss above), the statute of limitations should be extended.
There are three important limitations to my claims here. First, I am not speaking of a “duty to retract,” in the sense of a print newspaper’s affirmative obligation to publish a retraction to a printed story when it learns of errors. Such a duty has generally been rejected as a matter of libel law, and I am not trying to revive it here. I’m speaking here of a duty to stop defaming someone, by removing or correcting online material over which one has control, not a duty to remedy reputational injury by publishing new material.
Second, potential liability would be triggered only when the subject of an article notifies the publisher that the article is in error (or needs to be updated with new legal developments). Publishers wouldn’t have to proactively do follow-up investigations in the absence of such notifications.
Third, I am speaking here of a publisher’s duty to stop distributing its own errors. I am not proposing changing 47 U.S.C. § 230, which limits publishers’ responsibility for material submitted by others (such as comments posted by readers below news stories or blog posts). There is a separate debate about whether § 230 should be modified; I leave that to other articles.
[1] For the sake of brevity, I will mostly discuss the responsibility of the author, and include within that the employer’s respondeat superior liability. But I’ll occasionally mention the employer as well, just as a reminder that in practice both parties will likely be the target of a lawsuit (assuming the author is writing for someone else, rather than as an independent blogger or social media poster).
[2] Throughout, let’s assume that I’m technologically able to correct my statement, generally because it’s on a web site that I can update just as I could post to it in the first place.
[3] For a rare example of such liability for continued distribution, see S. Bell Tel. & Tel. Co. v. Coastal Transmission Serv., Inc., 307 S.E.2d 83, 85, 88 (Ga. Ct. App. 1983), where a phone company was liable for continuing to distribute yellow pages after being alerted that the slogan for a transmission repair company was printed not as “Get it in gear” but as “Get it in rear.”
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