The A.I. Defamation Cases Are Here: ChatGPT Sued for Spreading Misinformation

Plus: Age-verification laws threaten our First Amendment right to anonymity, New York bill would set minimum prices for nail services, and more…

ELIZABETH NOLAN BROWN

The case stems from reporting that journalist Fred Riehl is doing about a Second Amendment Foundation (SAF) lawsuit against Bob Ferguson, Washington state’s attorney general. Alan Gottlieb is one of the plaintiffs in the lawsuit.

Riehl linked to SAF’s complaint and asked ChatGPT to summarize. It allegedly responded that the complaint was “filed by Alan Gottlieb … against Mark Walters, who is accused of defrauding and embezzling funds from the SAF.” The ChatGPT summary continued by stating that Walters was the group’s treasurer and chief financial officer and that he had “misappropriated funds for personal expenses without authorization or reimbursement, manipulated financial records and bank statements to conceal his activities, and failed to provide accurate and timely financial reports and disclosures,” per Walters’ complaint.

“ChatGPT’s allegations concerning Walters were false and malicious, expressed in
print, writing, pictures, or signs, tending to injure Walter’s reputation and exposing
him to public hatred, contempt, or ridicule,” states Walters’ complaint. “By sending the allegations to Riehl, OAI published libelous matter regarding Walters.”

Furthermore, Walters alleges that OpenAI is aware that ChatGPT “sometimes makes up facts” and therefore “knew or should have known its communication to Riehl regarding Walters was false, or recklessly disregarded the falsity of the communication.”

But there’s a difference between a company knowing that an artificial intelligence tool can make mistakes and a company knowing that the A.I. tool would make a specific mistake. OpenAI being aware that ChatGPT sometimes errs seems spurious grounds to claim that it knew or should have known ChatGPT would provide false information about Walters. And it seems even more dubious to allege that OpenAI acted with malicious intent here.

And Riehl, the journalist, didn’t end up publishing any of the false information about Walters, which makes it harder to argue that Walter was harmed by ChatGPT’s mistake.

So does Walters’ case have any legal merit?

Law professor and blogger Eugene Volokh suggests that “such libel claims are in principle legally viable. But this particular lawsuit should be hard to maintain.”

Volokh—who has an upcoming paper on libel and A.I. output (a draft of which can be read here)—notes that when it comes to speech about matters of public interest or concern, defamation liability generally arises only when one of two things can be shown: that a defendant knew a statement was untrue (or likely untrue) but recklessly disregarded this fact or that the person being defamed is a private figure who suffered actual damages (things like a loss of income or business opportunities) because of an untrue statement that the defendant was negligent in making.

In this case, “it doesn’t appear from the complaint that Walters put OpenAI on actual notice that ChatGPT was making false statements about him, and demanded that OpenAI stop that, so theory 1 is unavailable,” writes Volokh.

Now I suppose that Walters could argue that OpenAI knows that ChatGPT often does publish false statements generally (it does, and indeed has acknowledged that), even if it didn’t know about the false statements about Walters in particular. But I don’t think this general knowledge is sufficient, just like you can’t show that a newspaper had knowledge or recklessness as to falsehood just because the newspaper knows that some of its writers sometimes make mistakes. For liability in such cases (again, absent actual damages to a private figure), there has to be a showing that the allegedly libelous “statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” And here no-one at OpenAI knew about those particular false statements, at least unless Walters had notified OpenAI about them.

I agree w/Prof. Volokh’s take overall. I can see the complaint failing without needing to even reach the 230 issues. It doesn’t seem OpenAI was put on notice of the alleged false output by the plaintiff + damages are suspect. pic.twitter.com/4A7QZalW1y

— Jess Miers 🦝 (@jess_miers) June 7, 2023

“Just because a company has general knowledge that their products and services could be used to perform illegal uses doesn’t mean that the company is liable for any instance of those uses,” Miers summarized.

Far from being something that should subject OpenAI to legal liability, the fact that OpenAI knows ChatGPT has some issues is a good sign. It means the company can work on fixing those issues and/or work on making sure people who use ChatGPT know not to take its outputs as gospel.

We should also think carefully about what we want OpenAI to do here, suggests Miers. “Perhaps they could provide more disclosures that urge folks not to rely on anything ChatGPT says as fact. But that’s about it. It’s pretty much all or nothing with this kind of technology. In using it, we accept that there will be a lot of junk. But the alternative very well might be ripping the service off the market entirely. Is that the desired outcome?”

FREE MINDS

Laws that mandate age-verification schemes for social media and other online platforms are proliferating before Congress and in statehouses around the country. But these schemes seriously threaten anonymized speech online, points out Weissmann:

Age-verification mandates could also implicate the rights of individuals with the concept of the “chilling effect” in court. This effect occurs when people voluntarily filter their speech due to laws and can cause courts to overturn these laws that cause the “chilling effect.”

FREE MARKETS

But low prices are one way that new businesses, small businesses, those with lower marketing budgets, and those in less desirable locations can compete with more established, centrally located, or chain establishments. Taking away salon owners’ ability to set their own prices seems to only benefit currently flourishing or big corporate salons, and could be a net negative to workers at smaller and more independent places.

The bill could also seem to be a slippery slope. What makes nail salons unique here? Nothing. And if the state can set minimum prices for manicures and pedicures, it can set prices for haircuts, tomatoes, fitness classes, or just about anything else.

The Nail Salon Minimum Standards Council Act would start by simply creating a commission on minimum pricing to study the issue and make recommendations. But this recommendation process would pave the way for a proposed regulation that, if all goes according to the bill’s plan, would “have the force and effect of law.”

QUICK HITS

And so the #WarOnComputation expands. https://t.co/1x1Spjoft3

— Adam Thierer (@AdamThierer) June 7, 2023

• A Connecticut couple is challenging the warrantless surveillance of their property by camera-carrying bears.

• “After days of silence, officials in Florida confirmed on Tuesday that the administration of Gov. Ron DeSantis had orchestrated two recent charter flights that carried groups of migrants from New Mexico to Sacramento,” reports The New York Times.

• A federal judge has halted Florida’s ban on gender transition treatments for minors:

— Chris Geidner (@chrisgeidner) June 6, 2023

• A bill that just passed the Louisiana Senate and House with a veto-proof majority would require teachers and schools to get parental permission to refer to a student by any name that is not “the name, or a derivative thereof… that is listed on the student’s birth certificate.” The measure would also require school employees to “use the pronouns for a student that align with the student’s sex unless the student’s parent provides written permission to do otherwise.”

• A Wisconsin bill would let people claim a $1,000 tax exemption for any “unborn children for whom a fetal heartbeat has been detected.”

• Tucker Carlson’s new Twitter show has launched.

Since starting at Reason in 2014, Brown has won multiple awards for her writing on the U.S. government’s war on sex. Brown’s writing has also appeared in The New York Times, Los Angeles Times, The Daily Beast, Buzzfeed, Playboy, Fox News, Politico, The Week, and numerous other publications. You can follow her on Twitter @ENBrown.

GET REASON MAGAZINE