United States: Truth Suits: Litigating Against The Viral Spread Of Disinformation

Before the term "super spreader" became inseparable from the coronavirus, it was sometimes used to describe individuals (and artificial intelligence) responsible for the "viral" spread of online information. That parallel is sensible. In many ways, disinformation and viruses are similar: A germ of an idea passes from a host to direct contacts who (knowingly or unknowingly) contaminate their own contacts, thereby perpetuating an exponential spread that is difficult to contain.

Disinformation has serious consequences for democracy, national security, public health, and individual rights. Increasingly, victims are attempting to combat disinformation via litigation. Litigation is an imperfect and inefficient tool for most victims of disinformation. Federal and state laws were not designed to combat the viral spread of information in the modern social media ecosystem. Thus, for the foreseeable future, victims' ability to challenge the spread of disinformation will continue to depend less on lawsuits and more on communications strategies (including access to the traditional news media) and the voluntary policies enshrined in private companies' user agreements.

In court, disinformation victims most commonly seek to remedy their harm by alleging that they were defamed. Before the internet existed—indeed, well before there was electricity—the common-law tort of defamation existed as a tool to protect an individual's reputation. William Shakespeare wrote in Othello:

The tort's imperfections match its age. More than a century ago, a Columbia Law Review article described the law of defamation as the legal doctrine most "open to criticism for its doubts and difficulties, its meaningless and grotesque anomalies" and as "absurd in theory, and very often mischievous in its practical operation." See Van Vecthen Veeder, The History and Theory of the Law of Defamation, 3 Colum. L. Rev., no. 8, Dec. 1903, 546–73.

As lawyers, we have witnessed the strengths and weaknesses of defamation litigation as a strategy against the spread of disinformation. We have represented victims of disinformation, relying on defamation causes of action, in which our clients have alleged that viral online conspiracy theories, motivated by partisan ends, have upended their lives and devastated their reputations. We have also defended clients against claims of defamation based on statements about issues of public concern. Our work in this space has even pulled us into court as defamation defendants, when a defendant in one of our active matters sued each of us personally for defamation based on public statements in which we summarized the defamation allegations that appeared in our client's complaint.

How Defamation Law Protects and Fails

Our experiences in these matters have caused us to reflect on how the law of defamation protects, and fails to protect, those who claim to be victims of disinformation, as well as how efforts to combat that disinformation intersect with the First Amendment principles that allow free speech and a free press to flourish. The features of the modern-day super spreader create the particular challenges the legal system faces in combating it.

In the era of the town crier, news spread only as fast as humans (or their animal companions) could travel. When the U.S. Continental Congress declared independence in July 1776, for instance, the monumental news was known almost instantly in Philadelphia but did not reach New York for days, Boston for a couple of weeks, and South Carolina for almost a full month. Although gossip has been subject to "viral" spread since the dawn of language, it was not until mass media came along that a drastic decrease occurred in the so-called "cycle rate"—or the time it takes for a message to move through hubs from one person to many people through chains of messages, rather than traditional word of mouth from one person to another person. With traditional newspaper and television media, the cycle rate is typically a day, although extraordinary events move faster. News of President John F. Kennedy's assassination was broadcast live, and within hours nearly half of the homes in the United States with television sets were tuned in to the news. Modern online communication, particularly via social media channels, has further compressed the cycle rate to minutes, if not seconds. Today, by the time a victim of disinformation learns about what is circulating online, it is likely that the narrative already will have spread exponentially.

While allegations of political "censorship" against leading technology companies are very much in vogue, the reality for most victims of disinformation is that very little can be done to stop the spread of a viral conspiracy theory. Information moves too quickly across platforms, and new venues for disinformation continue to emerge, including platforms that appear to be designed to create a home for alternative factual realities. The policies adopted by more established online platforms tend to be aimed at certain categories of prohibited speech—such as speech advocating violence or hate crimes. It is only recently that they have begun to suspend or ban users who violate terms of service or contravene guidance respecting particular subject matters beyond hate and violence.

Defamation does not fit comfortably, if at all, into the content policies of most platforms. For example, Reddit's "Content Policy" explains that behavior that "isn't allowed" includes threatening violence, sharing personal information, spamming, or "harassing, bullying, threatening, intimidating, or abusing someone with the intent to create a hostile environment or discourage them from participating in Reddit." False and defamatory speech does not appear in any of the categories. Instead, Reddit explains:

Reddit offers a way to report "misinformation" in its reporting tool, but it is unclear what would qualify as misinformation triggering Reddit's removal process. Some online platforms have expressed a view that the only circumstance in which they would consider removing defamatory content is if (and only if ) a court has adjudicated the subject and found the information to constitute libel.

First Amendment law relies on the principle that the best, and often only, weapon against speech is counter speech. As useful as it may have been in the context of the town square or past eras in which communities overwhelmingly obtained their news from the same newspapers and mass media outlets, that paradigm seems quaint in the modern media environment, and particularly so in the echo chamber of social media. The inability to fight false speech with the truth is the result of "homophily," the "tendency of similar individuals to form ties with each other." Social media platforms pair an individual's ability to cultivate a specific list of users to follow (or block)—seeing not only what these users generate but also what they like and re-post—with algorithms that sustain the individual's preferences by exposing the user to further validating content, called a "filter bubble." Such environments, which allow users to avoid views contrary to their own, appear to function less as free marketplaces of ideas, where contrary ideas compete, and more as free marketplaces of association, where self-selecting groups of individuals join together in communities increasingly impenetrable by disfavored facts and theories.

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Published in Litigation, Volume 48, Number 3, Spring 2022.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.