How Libel Law Applies to Automated Journalism

Automated journalism—the use of algorithms to translate data into narrative news content—is enabling all manner of outlets to increase efficiency while scaling up their reporting in areas as diverse as financial earnings and professional baseball. With these technological advancements, however, come serious risks. Algorithms are not good at interpreting or contextualizing complex information, and they are subject to biases and errors that ultimately could produce content that is misleading or false, even libelous. It is imperative, then, to examine how libel law might apply to automated news content that harms the reputation of a person or an organization. Conducting that examination from the perspective of U.S. law, because of its uniquely expansive constitutional protections in the area of libel, it appears that the First Amendment would cover algorithmic speech—meaning that the First Amendment’s full supply of tools and principles, and presumptions would apply to determine if particular automated news content would be protected. In the area of libel, the most significant issues come under the plaintiff’s burden to prove that the libelous content was published by the defendant (with a focus on whether automated journalism would qualify for immunity available to providers of interactive computer services) and that the content was published through the defendant’s fault (with a focus on whether an algorithm could behave with the actual malice or negligence usually required to satisfy this inquiry). There is also a significant issue under the opinion defense, which provides broad constitutional protection for statements of opinion (with a focus on whether an algorithm itself is capable of having beliefs or ideas, which generally inform an opinion).

‘A Separate and Distinct Tribunal’: Libel Law and Reviewing in Early Issues of Blackwood’s

In their efforts to attain the authority to police literary culture, reviewers in Blackwood’s and other Romantic periodicals needed models for making judgments that would stick and offering not mere opinions but verdicts which made further debate impertinent. In other words, they sought the authority to pronounce felicitous performatives, the ability to do things with words. Applying J. L. Austin’s concept of performative utterances to periodical criticism, this essay suggests that one of the models that particularly interested the Blackwood’s reviewers was that of libel law. Libel courts and book reviews, after all, engage in similar projects, aiming to regulate public discourse and define the limits of what it is acceptable to say or write in public. They do this by means of authoritative pronouncements, couched in performative speech acts: verdicts and sentences in the case of libel courts, decisive critical judgments in the case of reviews.

Identity, Technology and their Confluence: Governmentality in the Digital Age

The digital age has posed significant challenges for the governance of society. These challenges stem, in part, from the fact that many of the practices of governance arose in the pre-digital world. Foucault’s notion of ‘governmentality’ is a framework that can take account of the different sets of practices of governance. Comparing current practices with those highlighted by Miller and Rose’s ‘three families’ of governmentality suggests that twenty-first century governance operates as a new, fourth family. This research demonstrates this through an examination of aspects of the law—such as welfare and libel law—that have changed since the nineteenth century, with those changes mapping to the different families. In other words, the manner in which we, as legal subjects, have been constituted has changed, and will continue to change. As such, while specific practices such as fake news are seen to be problematic now, any reactions to them are historically contingent—and so the practices may not be seen to be an issue in a couple of decades time.

Restoring the State's Power to Defame: The Legal Life of Character in the Era of Roosevelt and Trump

While the abstract equality of citizens before the law is imagined as protection from arbitrary, subjective legal judgments of an individual's character, I argue that judgments of character play a pivotal yet unexamined role regulating access to citizenship in American law. Through a comparative analysis of President Trump and President Theodore Roosevelt, I show how their seemingly personal obsession with libel law reveals a deeper interest in consolidating the state's power as sole arbiter of character in order to weaponize the “good moral character” requirement in immigration and naturalization law as an instrument of racial and ethnic exclusion.

The swing of the pendulum: reputation, expression and the re-centring of English libel law

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