What "Publication" Means in Defamation Cases: ChatGPT et al. Do It

This week and likely next, I'll be serializing my Large Libel Models? Liability for AI Output draft. For some earlier posts on this (including § 230, disclaimers, and more), see here. Here, I want to explain why I think the "publication" requirement for defamation liability is satisfied in such situations.

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Some have also argued that statements by AIs in response to user queries aren't really "published," because they are just one-on-one responses (which may differ subtly in wording or even content for different users). But defamation law has always applied to one-on-one writings (such as personal letters,[1] or notes with comments on an ex-employee's job record[2]) and one-on-one oral statements (for instance, in telephone calls[3]). The Restatement (Second) of Torts captures it well, making it clear that "publication" in libel cases is a legal term of art:

Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.[4]

Some other legal rules require something more like the lay meaning of "publication." For instance, the false light and disclosure of private facts torts are limited to statements that are given "publicity," meaning ones that make an assertion "public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge."[5] Likewise, certain copyright law principles turn on whether defendant engaged in "publication," meaning "distribution . . . to the public," or performed or displayed a work "publicly," meaning (among other things) "at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."[6] But such publication in the colloquial sense is not required for libel liability.[7]

Of course, even if publication to a substantial group of people were required (as would be the case for the false light tort, see Part III.A), that could still be found when a statement, even with some variation, was distributed to many people at different times. Indeed, the copyright law definition of what counts as "public[]" performance of a copyrighted work (such as a song) recognizes that:

To perform or display a work "publicly" means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.[8]

And this makes sense: After all, if I post something on my web site, it will only be communicated to readers one at a time as they visit it, perhaps one today, one next week, another the week after, and so on—yet that should still be properly seen as, say, giving "publicity" to the information for false light or disclosure of private facts purposes.

[1] See, e.g., Restatement (Second) of Torts § 577 ill. 7.

[2] [Cite.]

[3] See, e.g., Restatement (Second) of Torts § 577 ill. 8.

[4] Restatement (Second) of Torts § 577(1). A statement said just to the plaintiff—e.g., accusing someone of being a thief, when no-one else is present—can't be libelous because it can't damage the plaintiff's reputation with third parties.

Note that the "intentionally or by a negligent act" in this section refers to the act of communication; the formulation precludes liability when, say, a person's note in his desk is unexpectedly seen by a third party (compare id. ill. 5, which imposes liability when the note is negligently left where it can be seen). It doesn't refer to knowledge or negligence as to the falsehood of the statement; that is the subject of the rules described in Parts I.F–I.H.

[5] See Restatement (Second) of Torts §§ 652D cmt. a, 652E cmt. a.

[6] 17 U.S.C. § 101.

[7] See Restatement (Second) of Torts § 652D cmt. a (reaffirming that publication for libel purposes, unlike publicity for false light and disclosure of private facts purposes, "includes any communication by the defendant to a third person").

[8] 17 U.S.C. § 101.