"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.

Comments

[Stephen Lathrop]

Professor Volokh, you have hit on one aspect of defamation law which distinguishes speech freedom from press freedom. This forum is full of comments insisting that no such distinction applies. Perhaps you already know better.

Libel has long been treated by courts as more damaging than slander. A libel once published can be corrected, but never recalled. That is as true with electronically published libel as it has always been with ink-on-paper libel. The researcher of your obituary, decades hence, may come upon the libelous article, and miss the correction. Historians interested in your life and deeds may as easily be misled. In every typical case, a defamation published in the press will prove more malignly efficient, more long-lasting, with greater geographical reach, and greater difficulty of correction, than any similar defamation merely uttered aloud.

Because of that distinction, the customs of the law built stronger bulwarks against abuses of press freedom than against careless speech. The monetary damages have been greater, and, crucially, there was until recently a requirement for shared liability between authors and publishers—which of course applied only to libel, and not to slander.

With those considerations in mind, I remain baffled about your own advocacy about electronic media, and especially Section 230. Section 230 is well along with a process of dismantling those distinctions which offered stronger legal protections against printed libel than against spoken slander.

The elimination for online media of shared liability between publishers and authors has been a catastrophe. It not only created almost limitless scope for authors to publish world-wide, cost-free, anonymously sourced libels. It also, as a practical matter, dismantled the custom of editing prior to publication, which had previously checked not only libels of those kinds, but also a host of other kinds of publications destructive to public discourse. The nation now struggles with the consequences of a depraved public discourse as a consequence of those changes.

Throughout all that, your own advocacy has returned again and again to claims, implications, and insinuations that there is not practical difference between speech freedom and press freedom. You seem oblivious to any need to protect or control either of those on any basis different than the other.

It is striking that you can ignore all that, and yet author any article like the one referred to above. You appear set to take account of one tiny, barely-changed aspect, as the rest of the speech/press legal edifice is being shaken down without your notice.