Free Speech

"The Duty Not to Continue Distributing Your Own Libels"

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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.