Defamation and AI

This is John Quinn, and this is Law Disrupted, and today we're going to be talking about

what else?

AI.

It's all AI these days, right?

But this is a particular part of AI that we're going to be talking about, an area of

the law that's developing.

We'll see how far it goes, and that's the application of defamation law to the output

of large language models.

We're starting to see some cases that are being filed, where people are saying I was

defamed by the AI.

And here to talk to us about this is my partner, Bobby Schwartz, an associate in our firm,

Marie Hyra Petian, I hope I said that, or close enough, Marie.

You'd got it.

Okay.

So tell us, Bobby, we're starting to see some cases filed, and tell us to give us some

examples of some of the cases, and what's the theory of the case?

Yeah, we've had some cases filed, one case has resulted in a defense summary judgment

win, and we'll talk about that.

And some of the issues that arise in these cases are, for example, who's the speaker?

Is it the AI bot?

Is it the person who prompted the AI bot to produce an output that turned out to be false

and otherwise the family, and how do you deal with public figures where you have to prove

constitutional malice through evidence, either that the speaker knew the statement was

false or acted in request disregard for the truth?

If the speaker is an AI bot, how are you ever going to show that spots don't have intent?

Yeah.

I'll give us the fact pattern of some of the cases.

So here's one.

Why are the cases?

Is that a Georgia?

It was against open AI and a fellow, Mr. Walters, soon as open AI, for defaming him because

somebody queried a chat GPT to ask about a lawsuit to which he was a party, and after

multiple prompts, the chat GP output said that to the CFO, the plaintiff in this case

was an embezzler, and that lawsuit had nothing to do with the ad.

He had never been an embezzled anything, and so it was obviously accusing him of a crime

to family per se.

And so he sues open AI for how does he become aware of this output?

Is this something that had he put in the prompt or somebody else did and forwarded to

him?

How did he become aware of it?

I don't want to follow the conversation.

Can I ask Rita to jump in and give us a little background on the case?

That's a great question, John.

And I had to go back into the complaint when I asked myself the same question, and there

was really nothing from the plaintiff explaining how he even found out about it.

It was in the motion for summary judgment and the court's order granting summary judgment

where it became clear to me that the plaintiff found out after the journalist went to the

company and asked if that was true, or went to the plaintiff and asked if that was true.

And the plaintiff said, no, it's not true.

It's still unclear to me how Walter found out about it.

Okay.

Okay.

So a journalist put his prompt into an LOM.

This was the output.

So the journalist does his job because he starts investigating it and the result is a lawsuit

for death.

Now, what was the grounds on which the court granted summary judgment?

There are two grounds, one of which 100% sure of, and the other seems more sustainable

on appeal.

This was that the open AI successfully argued that the output was not to family's worry.

As a matter of law, it did not communicate a defamatory meeting.

And that's based on, I know, but judging Georgian focused on was the legal principle that

says that the statement has to be reasonably understood as describing actual facts about

a plaintiff and that to no reasonable reader would have under these circumstances concluded

that what chat GPT was putting was outputting were actual facts.

And that's because there were all kinds of warnings to the journalist making the queries

saying, just remember, this is not a flawless and there were additional warnings that said,

I can't go back in far enough in time to pull up the complaint you want me to ask

me about.

And this is the LLM saying I can't do this.

Yes.

Yes.

So the LLM gave the journalist limitations and that should have put the journalist on notice

or was sufficient to put the journalist on notice that what chat GPT was outputting

were not actual facts.

That doesn't sound exculpatory to me.

Now, if I were open AI, I'd be a little worried about whether that's going to survive a

pellet review if there is any of a pellet review.

But there's maybe some unusual facts here where the reporter already had the complaint or

a copy of the complaint.

Well, let's do some other examples of cases.

Let's see.

The other cases haven't been resolved.

But here's some other instances.

And this one, I think, has more legs.

This one's against Google.

And a business is claiming, is suing Google for defamation because it's AI overview tool

spit back a result that said the Minnesota State Attorney General was suing the plaintiff

for deceptive practices.

And that resulted in a lot of lost business anywhere from 100 to 200 million dollars in

lost sales.

How did everybody learn about this?

That's a good question.

So when you hit something on Google, the very first thing that pops up is the AI overview.

And anyone in that time frame, that Google did apparently read that particular fat powder.

So that's a Gemini paragraph at the top right or true so a lot of contracts started

becoming canceled.

Right.

That would be bad.

That would be bad.

If you're seeing that every time you search this business, that's up on top that they're

being investigated by the Attorney General.

Okay.

Before we plunge into the elements, give us just another example.

So we have a flavor of what's happening in the courts and AI and defamation.

We get deep fakes.

Sexualized deep faked image it is based on photos that not as naked people, but let's

say somebody posts a photograph of themselves on social media.

And then somebody else runs a query and it's a text to image query and says show me photographs

of so it's in a nude or not in a nude, whatever.

And that's happened on Groc, which is the X platform or the X AI tool where and so they've

been sued anonymously by a woman who says, Hey, that's me.

I've never posted a photo of myself naked and this is under California law, defamatory.

It's revenge porn and on and on.

Okay.

Do you think the law of defamation that's really going to have applicability to the output

of LLMs?

You've identified what are some pretty obvious problems.

We think we know defamation is intentional tort, but don't have intentions, LMs don't

have intentions so far as we know.

People who put in prompts may be do.

Yeah, that's where I think the dividing line will get drawn that that the AI platforms

are less likely to end up having liability versus individuals who prompt AI tools, get

some statement and then re-cublish it, carelessly or otherwise, and maybe they should have liability.

And by the way, lurking in all this yet to be addressed in any case is Section 230

of the Communications Decency Act, which provides a safe harbor for Internet platforms for

against liability for material that's posted by users now.

Well, question is, it does Section 230 apply in this context and I realize maybe I'm jumping

my head here, but it's an interesting question because normally that gets applied if a user posts

a defamatory statement about somebody and then the subject of that post files a defamation

claim against the speaker and the platform for republishing it or publishing it in the

first instance and the platform says, sorry, no, I didn't put that there.

The user did.

Well, in this case, it's not clear the user certainly the user prompted the platform to generate the

output, but there was some interaction with maybe non-volitional, but nonetheless some conduct on

a part of the platform and courts have yet to deal with that. So that's another issue lurking

here that we'll have to get resolved.

All right. So other than the intent element, I guess there's also an issue about who is the speaker?

Yes. It's the LLM, the speaker is the the data scientist behind the LM, the speaker is the

person who entered the prop the speaker. And the platform would presumably take the position

that they're not actually, and this gets into sort of the esoterica of how these large language

models work. They're based on algorithms that look for probabilistic similarities or patterns

in communicate human language. And based on that, they articulate or come up with responses.

So they're not necessarily thinking, oh, Sally Jones is a bad person or whatever the

defenitory statement would be. They're just trying to present a creative language in response to

prompts. And are they really the speaker or are they even speaking at all, even though we recognize

it as language that we can comprehend. The model doesn't think of it that way. And are they

the speaker and are they the speaker because all they were doing was reacting to prompts by

a third party who wanted to hear something or get something about the subject of the prompt.

Obviously, if there is an output, which is defamatory, and somebody then takes that and publishes

the defamatory output, that could be a traditional defamation claim. I agree. Yeah, there's nothing

unusual about that. That's just republication. The only reason we're talking about this is

people are bringing claims against the open AI and Claude and the like. It raises these issues

about intents and who's the speaker and the like. And when you're dealing with republication,

so the standard is, and this has arisen a lot in social media context, not involving the

original language models, but just traditional social media or any other form of media.

The question the courts ask is, was it reasonable for the speaker to believe that when the

he, she or it, said whatever they said to this other person or these other persons that these

other persons would republish it to members of the public. And if that's, if the answer is yes,

then they can have liability. But if I were representing an AI platform, I would say, of course,

we didn't have that expectation. We warned our users that our models are capable of hallucinating

and that they should use care. And it would not be very hard if it's not already there to bake

something in the terms of service or the end user license agreement that provides some

language that would disclaim any intent or expectation and give some insulation against republication.

What should somebody do if they feel that they've been the victim of AI defamation?

What actions can you take? Most of the platforms, I think all of the platforms have systems,

monitors, complaint procedures where you can bring to their attention an issue or a problem.

And especially if it's built baked into a social media platform, which is off in the case,

so that if somebody has posted something and even if it had nothing to do with an AI generated

output, but if somebody's unhappy with something somebody posts, there are mechanisms.

They're not very effective. They're not overseeing, if you will, by some statutory rubric like

the Digital Millennium Copyright Act is for copyright infringement. But you have that recourse

and you can contact the platform, you can contact the user.

I think they're given the volume of this activity. It's impossible for

platforms to be able to meaningfully respond to it, take things down, whatever they do that they

can do realistically they will. But I don't think you should assume it. And the other problem

with protecting your rights here is usually you're just confronted with some user handle

that could be in a private mode. In other words, you may not be able to contact that person.

You may not be able to even sue them other than through the pseudonym. You might have to sue

the entity to get them to compel them to tell you who the user is so that you can then actually

file a lawsuit against them as a real human being. It's very hard to enforce these rights for defamation.

It sounds to me like this, the intersection of long defamation and defamation and AI and these

cases are coming up are interesting developments, but it doesn't sound to me like it has legs.

Unless they're fundamental, we recognize fundamental changes in the law of defamation.

Marie, do you agree with that? I definitely agree with that. Defamation is usually described as

an intentional tort, but that's a little bit misleading because you don't have to intend to hurt

someone. People the same others by accident all the time. What you need to have is to have met

to publish the statement and AI starts to break that framework because in these cases, nobody really

meant to publish the defamatory statement. The user asked an innocent question. The company built

a product and warned at my mate mistakes. The model just predicted the next word. That's how

these things work at their core. It's not retrieving facts like a surge engine. It's assembling

language based on patterns. So the harm can be real, but the causal chain can be clear,

but nobody fits neatly into the traditional definition of a publisher. And in some sense,

everyone did something reasonable and so on. Still got hurt and fault based tort law doesn't have

a great answer for that, which raises a bigger question. Do we eventually need a different framework

entirely? And one possibility people have been talking about is product's liability. So you don't

too forward by proving they intended your interactive fail. You show the product was

deceptive and caused harm and applying that idea to AI generated speech would be a major shift,

but these are commercial products deployed at massive scale and the harms are foreseeable.

So no court has gone there yet. It's just what we see people writing about.

That's an interesting thought. Thank you both. Bobby Schwartz, Marie Hyra Petian. Thank you

for joining us to talk about AI and defamation. This is John Quinn. This has been Law Disrupted.

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