Court Lets First AI Libel Case Go Forward

Georgia Gwinnett County Superior Court Judge Tracie Cason's decision last week in Walters v. OpenAI, LLC simply says that it denies OpenAI's motion to dismiss, and (as is common in many state courts) doesn't offer a detailed explanation. But here's an excerpt from Walters' response to OpenAI's motion to dismiss; presumably the judge agreed with much of the response (for more on this sort of question, see my Large Libel Models article):

The following facts are alleged in the Amended Complaint and must be taken to be true:

Fred Riehl is a third party who works for a media outlet as a journalist and who is a subscriber of ChatGPT. On May 4, 2023, Riehl interacted with ChatGPT about a lawsuit (the "Lawsuit") that Riehl was reporting on.

The Lawsuit is in federal court in the Western District of Washington, case No. 2- 23-cv-00647, with short caption of The Second Amendment Foundation v. Robert Ferguson. The two defendants in the Lawsuit are Robert Ferguson, the Washington Attorney General, and Joshua Studor, the Washington Assistant Attorney General. The plaintiffs in the Lawsuit are the Second Amendment Foundation and others, including Alan Gottlieb. Walters is neither a plaintiff nor a defendant in the Lawsuit.

In the interaction with ChatGPT, Riehl provided a (correct) URL of a link to the complaint on the Second Amendment Foundation's web site, https://www.saf.org/wp-content/uploads/2023/05/Dkt-1-Complaint.pdf. Riehl asked ChatGPT to provide a summary of the accusations in the complaint.

ChatGPT responded that the document "[I]s a legal complaint filed by Alan Gottlieb, the founder and executive vice president of the Second Amendment Foundation (SAF), against Mark Walters, who is accused of defrauding and embezzling funds from the SAF. The complaint alleges that Walters, who served as the organization's treasurer and chief financial officer, misappropriated funds for personal expenses without authorization or reimbursement, manipulated financial records and bank statements to conceal his activities, and failed to provide accurate and timely financial reports and disclosures to the SAF's leadership. The plaintiff seeks various forms of relief, including the recovery of misappropriated funds, damages for breach of fiduciary duty and fraud, and removal of Walters from his position as a member of the SAF's board of directors."

Every statement of fact in the summary pertaining to Walters is false.

As already noted, Walters is not a party to the Lawsuit. Walters is not accused of defrauding and embezzling funds from the Second Amendment Foundation ("SAF"). The complaint does not allege that Walters served as SAF's treasurer or chief financial officer, and he has never held either position. The complaint does not allege that Walters misappropriated funds for personal expenses, manipulated financial records or bank statements, or failed to provide financial reports to SAF leadership, nor would he have been in a position to do so because he has no employment or official relationship with SAF. The complaint does not seek any relief from Walters. The complaint has nothing at all to do with financial accounting claims against anyone.

SAF publishes the names of its officers and directors on its website. SAF has never listed Walters as its CFO or treasurer. SAF also publishes its audited financial statements on its website. Such audited financial statements have never mentioned the misappropriation of funds. OAI knows or can readily determine that Walters has never been the CFO or treasurer of SAF.

Riehl asked ChatGPT to provide him with a copy of the portion of the complaint related to Walters. ChatGPT responded, "Certainly, here is the paragraph from the complaint that concerns Walters: 'Defendant Mark Walters ("Walters") is an individual who resides in Georgia. Walters has served as the Treasurer and Chief Financial Officer of SAF since at least 2012. Walters has access to SAF's bank accounts and financial records and is responsible for maintaining those records and providing financial reports to SAF's board of directors. Walters owes SAF a fiduciary duty of loyalty and care, and is required to act in good faith and with the best interests of SAF in mind. Walters has breached these duties and responsibilities by, among other things, embezzling and misappropriating SAF's funds and assets for his own benefit, and manipulating SAF's financial records and bank statements to conceal his activities.'"

Riehl then asked OAI's ChatGPT to provide the entire text of the complaint. ChatGPT provided the text in Exhibit 1 to [the] Complaint [in this case]. Exhibit 1 is a complete fabrication and bears no resemblance to the actual complaint, including an erroneous case number. None of ChatGPT's statements concerning Walters are in the actual complaint.

OAI is aware that ChatGPT sometimes makes up facts, and refers to this phenomenon as a "hallucination." Riehl questioned OAI regarding the accuracy of its statements regarding Walters, and OAI insisted that they were accurate. OAI knew or should have known that its statements made via ChatGPT to Riehl about Walters were false and defamatory. Even when questioned about the accuracy of its statements, OAI did not attempt to verify them. OAI disregarded serious questions about the accuracy of its statements. OAI was reckless in its disregard of the falsity of its statements.

OAI CEO Sam Altman was quoted in Fortune in June of 2023 as saying, "I think we will get the hallucination problem to a much, much better place. I think it will take us a year and a half, two years. Something like that." Altman also has said, "I probably trust the answers that come out of ChatGPT the least of anybody on Earth."

Riehl contacted Gottlieb regarding ChatGPT's allegations concerning Walters, and Gottlieb confirmed that they were false….

OAI complains that 1) Riehl did not and could not read OAI's statements as defamatory; 2) there was no publication; and 3) Walters is a public figure and there was no actual malice. These are the types of things that are to be assessed in discovery and cannot form the basis of a motion to dismiss for failure to state a claim. Nevertheless, Walters will discus each item in turn:

Whether Riehl Viewed the Statements as Defamatory

OAI relies on a statement from Riehl to OAI challenging the accuracy of the statements. OAI insists this shows that Riehl did not believe the statements. Even if this could form the basis of a failure to state a claim, the burden is on OAI to prove with certainty that Riehl did not believe the statements. This, it cannot do. The Amended Complaint alleges that Riehl checked with a third party (Alan Gottlieb) to determine if OAI's statements were true. That is, the Amended Complaint shows that Riehl questioned the accuracy of OAI's statements—not that he disbelieved them. Whether Riehl with certainty did not believe OAI's statements cannot be determined without discovery.

OAI itself refers to its statements as "probabilistic," a euphemism for "maybe not true." OAI insists that "responsible use" of its ChatGPT system includes "fact-checking" its statements. That's what Riehl did, by first challenging OAI itself and then checking with a third party. In essence, OAI is arguing that it is a mere gossip monger who begins its wild accusations with, "Now this may not be true, but…." The responsible thing for OAI would be not to spread false rumors in the first place.

Publication

OAI next argues that its statements to Riehl do not constitute publication. Under Georgia law, "A libel is published as soon as it is communicated to any person other than

the party libeled." In order recover for libel, "there must be communication to any person other than the party libeled." The Amended Complaint clearly alleges that the defamatory statements were communicated to Riehl, someone other than Walters. While OAI is free to explore these allegations in discovery, it cannot be disputed that Walters stated a claim.

Whether Walters is a Public Figure and Whether There Was Actual Malice

OAI … argues that Walters is a public figure and OAI had not actual malice. Whether someone is a public figure is a mixed question of fact and law. It must be decided on a case-by-case basis. It turns on whether the plaintiff has achieved "pervasive fame or notoriety" or whether the plaintiff "voluntarily injects himself or is drawn into a particular public controversy." OAI does not assert which form of public figurehood applies to Walters. Given, however, that OAI has not identified a "particular public controversy," the only reasonable conclusion is that OAI must be asserting that Walters has achieved "pervasive fame or notoriety." This determination cannot be made without discovery.

Even if Walters is a public figure, "Actual malice" is knowledge that the statements were false or reckless disregard for their truth or falsity. The Amended Complaint alleges, "OAI knew or should have known that its statements made via ChatGPT to Riehl about Walters were false and defamatory." And, "Even questioned about the accuracy of its statements, OAI did not attempt to verify them." "OAI disregarded serious questions about the accuracy of its statements." "OAI was reckless in its disregard of the falsity of its statements." OAI clearly knew its system generated blatantly false statements. Its own CEO said, "I probably trust the answers that come out of ChatGPT the least of anybody on Earth."

Personal Jurisdiction

Finally, OAI argues that this Court lacks personal jurisdiction over it because it is organized out of Delaware and headquartered in California. OAI ignores, however, that the Georgia Supreme Court has re-affirmed that registering to do business in Georgia subjects a company to the personal jurisdiction of the courts of this State. The Amended Complaint alleges that OAI is registered to do business in Georgia….

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.