The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

"The Duty Not to Continue Distributing Your Own Libels"


My new article on this subject, which I've previewed before here, has now been officially published in the Notre Dame Law Review, volume 97, pp. 315-49. Here's the abstract:

Say something I wrote about you online (in a newspaper, a blog, or a social media page) turns out to be false and defamatory. Assume I wasn't culpable when I first posted it, but now I'm on notice of the error.

Am I liable for defamation if I fail to remove or correct the erroneous material? Surprisingly, courts haven't settled on an answer, and scholars haven't focused on the question. Libel law is stuck in a time when newspapers left the publisher's control as soon as they are printed—even though now an article or a post can be seen on the publisher's site (and can do enduring damage) for years to come.

This Article also deals with a related question: Say I wrote about your having been indicted for a crime, but months or years later you are acquitted; am I liable for defamation if I fail to update the original story to reflect the new legal developments? That too is legally unresolved.

This Article argues that existing common-law principles allow for a limited duty to stop hosting material that one learns is defamatory; and that legislatures can further supplement that duty.

Let me know what thoughts you folks have on it; and, if you're a lawyer and end up using it, let me know what comes of that.