The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Some Rhetoric from the Rotenberg v. Politico Complaint
Gripes about publishers getting "private commercial benefit" from "hate speech, propaganda, and statements that seek to destabilize American democracy"; argument that "[t]he public figure doctrine emerged in an era prior to the Internet advertising model that rewards news organizations for the ongoing display of defamatory content."
Some more from the Complaint, and in particular the section asserting the claim for unjust enrichment and misappropriation of name and likeness. (You can also read more about the libel claims and the disclosure of private facts claim.)
Complaints generally don't have these sorts of policy arguments in them, but presumably this is something of a signal (however imperfect) of what Rotenberg will argue in future filings. And it also indicates how one important public policy advocate sees such matters; Rotenberg is now the Executive Director of the Center for AI and Digital Policy at the Michael Dukakis Institute.
[353.] POLITICO and Robert Allbritton, as publisher of POLITICO, owner of The Protocol, and President of Perpetual Capital Partners, obtains commercial value every time a person clicks on the false and defamatory stories concerning Marc Rotenberg.
[354.] In the absence of action by this Court, Robert Allbritton will continue to derive commercial benefit from the publication of content that is defamatory, false and malicious.
[355.] This standard allows publishers to obtain private commercial benefit from articles they choose to publish that includes disinformation, revenge porn, hate speech, propaganda, and statements that seek to destabilize American democracy.
[356.] The Internet advertising model—the "reinvention of the newsroom" —has coarsened political debate, contributed to political polarization, mocked science and evidence-based analysis, and diminished the value of news. It has imposed specific costs on individuals and organizations who are the targets of this reckless form of journalism.
[357.] Regarding the privacy debate in America, The Protocol and POLITICO's reckless disregard of well-known medical and scientific practices has undermined—and continues to undermine—thoughtful, well-reasoned approaches to emerging challenges.
[358.] The Protocol and POLITICO's vicious and reckless reporting about Marc Rotenberg, the former leader of EPIC, has also chilled conversations and public statements about effective privacy responses to the pandemic. Since The Protocol and POLITICO articles, EPIC itself has ceased reporting on privacy recommendations from the World Health Organization.
[359.] Not all of these harms can be remedied in this proceeding, but to the extent that a news organization, with reckless disregard of the truth, seeks to "drive digital engagement" with a "strong personality element," the law recognizes the commercial dimension of the harm.
[360.] Merriam-Webster describes unjust enrichment as "(1) the retaining of a benefit (as money) conferred by another when principles of equity and justice call for restitution to the other party; (2) a doctrine that requires an equitable remedy on behalf of one who has been injured by the unjust enrichment of another."
[361.] Appropriation is the use of a person's name or likeness for commercial benefit without their consent.
[362.] The District of Columbia has adopted the definition set forth by the Restatement (Second) of Torts § 652C for … the tort of misappropriation of name.
[363.] One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.
[364.] The public figure doctrine emerged in an era prior to the Internet advertising model that rewards news organizations for the ongoing display of defamatory content.
[365.] POLITICO and The Protocol should not continue to profit from the defamatory use of a person's name and likeness.
I'm pretty skeptical about these arguments. Among other things, the First Amendment protects "hate speech, propaganda, and statements that seek to destabilize American democracy," so whether or not Politico and Protocol (or other publishers) profit from such speech strikes me as irrelevant.
I'm also not sure why it should matter that "[t]he public figure doctrine emerged in an era prior to the Internet advertising model that rewards news organizations for the ongoing display of defamatory content." News organizations have long been rewarded, through advertising, subscriptions, and newsstand sales, for publishing eye-catching and often even lurid scoops (an incentive that has naturally increased the risk of defamation); that they now continue to get some advertising revenue from "ongoing display" doesn't strike me as relevant here (though I agree that ongoing display on the Internet does sometimes create somewhat novel libel-related problems).
As to "Regarding the privacy debate in America, The Protocol and POLITICO's reckless disregard of well-known medical and scientific practices has undermined—and continues to undermine—thoughtful, well-reasoned approaches to emerging challenges," I just don't see the relevance. Whatever might or might not be tortious in defendants' publishing information about Rotenberg's COVID diagnosis, the argument for liability can't be that the defendants' speech is undermining supposedly "thoughtful, well-reasoned approaches to emerging challenges."
Finally, whatever arguments for liability might be here, the claim that defendants' speech "has … chilled conversations and public statements about effective privacy responses to the pandemic" and that "EPIC itself has ceased reporting on privacy recommendations from the World Health Organization" strikes me as likewise irrelevant. Whatever defendants might be held liable for, they can't be held liable for EPIC's decisions about what privacy recommendations to cover (even if those decisions were somehow influenced by defendants' coverage).
If the arguments are made further in court filings, with more supporting detail, I'll likely analyze them further. But for now I just wanted to flag them in case our readers find them interesting.
