A Lie Detector for Social Media? Thoughts From a Defamation Perspective

The BBC reports:

A lie detector for social media is being built to try to verify online rumours. 

The system will analyse, in real time, whether a posting online is true. 

. . . 

The system will categorise the sources of information to assess their authority. Categories include news outlets, journalists, experts, eye witnesses, members of the public and bots - accounts that automatically generate social media posts. 

It will also examine accounts for a history or background to try to identify whether the account has been created just to spread rumours. 

Conversations on social networks will be studied to see how they evolve and sources will be checked to see if information can be confirmed or denied.

The article concludes that the system will hopefully be available to journalists after a period of testing.

It would be interesting to see how this would affect defamation lawsuits. Journalists and others who post things on the internet may copy from a source without verifying whether it is reliable. There is a lot of unreliable content out there (for example, I've heard rumors of blogs started by law students), and copying from these sources is as easy as hitting a couple of buttons.

Will journalists and other online writers be held to higher standards in defamation lawsuits if this sort of technology becomes widely available? Under New York Times v. Sullivan, suits arising from statements about public figures will still be subject to an actual malice - or reckless disregard for the truth - standard. This means that plaintiffs need to prove that the defendant published a false statement knowing that the statement was false, or had reason to doubt the statement was false, but published it anyway. In these cases, the lie detector technology may help defendants. If defendants use a social media lie detecting system before making their statements, they may disprove the plaintiff's claims that the defendants doubted the truth of what they were saying.

On the other hand, social media lie detection technology may harm defendants who make statements about private-figure plaintiffs. Under Gertz v. Robert Welch, Inc., the standard for proving defamation in these cases may be as low as negligence (although plaintiffs would only be able to recover actual damages if successful). Under a negligence standard, defendants' failure to use lie detector software may open them up to liability if that software is readily available. Using this type of technology to verify the truth of a story may become an expected step in publishing information online, and if lie detection software ends up being effective, cheap, and widely available, this could change the dynamic of online defamation cases involving private-figure plaintiffs.

The technology is still in its development, and will be in the testing phase over the next three years, but it is an important piece of technology to watch.

Will the Silk Road 2 Bitcoin Hack Give Rise to Negligence Lawsuits and Would this Litigation Succeed?

The BBC reports:

The anonymous online marketplace Silk Road 2 says it has been hacked resulting in the loss of all its customers' bitcoins. 

An administrator for the site said hackers had manipulated computer code enabling them to withdraw $2.7m (£1.6m) worth of the virtual currency.

It follows similar attacks on two exchanges that trade in bitcoins earlier in the week. 

Silk Road 2 is known for selling drugs and other illegal items. 

The site is only accessible through Tor, a network that allows users to browse anonymously online. The virtual currency Bitcoin is often used in transactions as it also grants users a degree of anonymity.

This incident may be particularly interesting to watch because of the notable degree of ineptitude demonstrated by the website's administrator, known (ironically) as Defcon. Defcon should have known that the website was vulnerable to this type of hack because an earlier, similar attack on the Slovenia-based bitcoin exchange firm, Bitstamp, occurred only a few days earlier. That hack made international news, with the BBC reporting about the attack and its underlying mechanics here.

Defcon himself admitted that he should have been taking more precautions:

"I should have taken MtGox and Bitstamp's lead and disabled withdrawals as soon as the malleability issue was reported. I was slow to respond and too sceptical of the possible issue at hand," he said in the forum posting. 

In an article for CoinDesk, a news site for digital currency, Danny Bradbury an expert on Silk Road, said that bitcoin-based sites should put "bitcoins under management in cold storage (ie stored offline) so that they could not be stolen by online attackers." 

Defcon said that all its customers' bitcoins were being stored online because of planned relaunches of some of the site's features. 

"In retrospect this was incredibly foolish, and I take full responsibility for this decision."

Several Silk Road 2 users suspect that Defcon or other website administrators may have been involved in the hack, which Defcon denies.

Even if Defcon was not maliciously involved in the hack, it seems that his administration of the website was notably foolish. The failure to halt withdrawals in light of widespread reports on Bitcoin security breaches and the storing of all customers' Bitcoins online both contributed to the success of this hack. These failures, combined with Defcon's admission that he should have taken additional precautions, set the stage for a substantial negligence lawsuit against Defcon and Silk Road 2.

As far as I am aware, there have not been many similar negligence lawsuits against Bitcoin exchanges. I am aware of one lawsuit that is pending in California against the Bitcoin exchange, Bitcoinica, following the loss of thousands of Bitcoins following a hack on the exchange. The complaint in that case is available here. And at The Verge, Adrianne Jeffries reports on obstacles that case may face here. Jeffries also reports on another lawsuit against Bitcoin exchange Tradehill, but that lawsuit apparently has proceeded to arbitration.

While the Bitcoinica lawsuit is in its early stages, potential problems with that lawsuit highlight issues that may arise in a lawsuit against Silk Road 2. From Jeffries:

The plaintiffs may face some challenges. The question of jurisdiction is not addressed, and although some of the plaintiffs live in San Francisco, Bitcoinica is now based in the UK. The suit also hopes to pull in up to 100 defendants. "Bitcoinica is an entity of unknown form and origin," says the complaint, which names three defendants and "Does 1 through 100." A representative for Intersango declined to comment. The lawyer for the plaintiffs declined to comment because his lead client could not immediately be reached.

Similar problems may arise in a lawsuit against Silk Road 2. Bitcoin exchanges operate in a world of anonymity, and it may be difficult for plaintiffs to determine the true identity and location of website administrators like Defcon.

It will be interesting to see if any lawsuits result from this recent hack. Because the facts are very favorable for a negligence lawsuit, and because millions of dollars were lost as a result of this hack, I think that there is a high possibility of legal action. If lawsuits occur, this will be a good opportunity to see how the plaintiffs and courts address the obstacles of the defendants' anonymity.

Medical Negligence Suit Filed Against Bishops

The New York Times reports:

The American Civil Liberties Union announced on Monday that it had filed a lawsuit against the nation’s Roman Catholic bishops, arguing that their anti-abortion directives to Catholic hospitals hamper proper care of pregnant women in medical distress, leading to medical negligence. 

The suit was filed in federal court in Michigan on Friday on behalf of a woman who says she did not receive accurate information or care at a Catholic hospital there, exposing her to dangerous infections after her water broke at 18 weeks of pregnancy. 

In an unusual step, she is not suing the hospital, Mercy Health Partners in Muskegon, but rather the United States Conference of Catholic Bishops. Its ethical and religious directives, the suit alleges, require Catholic hospitals to avoid abortion or referrals, “even when doing so places a woman’s health or life at risk.”

The Times labels this as "a new front in the clash over religious rights and medical care" and notes various lawsuits by the Catholic Church arguing that laws requiring health plans to cover contraception violates religious freedom.

While this does indeed involve a legal issue involving churches and medical care, I am not sure that it is very instructive to compare this suit to lawsuits against laws governing health plans.  Those laws involve questions of Catholic institutions' First Amendment rights to be free from certain legislation, while this case seems to be a case of medical negligence caused by the directives of the church.  This point seems to be the position the ACLU is taking towards the overall suit.

Of course, I cannot conclude this post without noting that this issue was raised back in 2006 in Season 2 of Boston Legal.  In that season's 15th episode, "Smile," a Catholic hospital refuses to give the plaintiff access to the morning-after pill after she is raped.  The plaintiff becomes pregnant, and she sues the hospital.  While that episode addresses the morning-after pill -- and the distinction between the use of that pill and abortion procedures -- many of the issues raised and discussed are pertinent to the ACLU's suit here.

Fox News Sued for Distress Caused by On-Air Suicide

BBC reports on a lawsuit filed by the family of a man who shot himself at the end of a car chase broadcast by Fox News is suing the network for infliction of emotional distress that arose from viewing the broadcast.

This suit initially seems related to negligent infliction of emotional distress (NIED) (which I posted about in the context of exam grades here.)  I find it difficult to fit this lawsuit into the NIED category, however.  The news-public relationship does not seem to be a relationship that is likely to cause severe harm or distress if the newscaster acts negligently (as opposed to, say, an undertaker who misidentifies a body and cremates it.)  Additionally, this does not seem to fit into the category of bystanders suing for NIED because Fox News did not cause the act that resulted in the harm.  This is different from, say, Scherr v. Hilton Hotels Corp., 214 Cal. Rptr. 393 (1985) a case where plaintiff argued (unsuccessfully) for NIED when the plaintiff saw a live broadcast of a hotel fire where her husband died.  In that case, the plaintiff was suing the hotel, not the news agency, because it was not the news agency that caused the harm that in turn caused the emotional distress.

Here it is different -- the plaintiff is focusing her efforts on the news agency that broadcast the suicide of the father of her children.  It probably would not be sense to sue the most direct cause of the distress -- the man himself -- since he is dead.  The question becomes whether the medium that communicates the distressing event can be sued, that is, whether the plaintiff can sue the messenger.

There is the possibility that the plaintiff may still have an argument for emotional damages caused by general negligence.  After all, negligent infliction of emotional distress is a separate claim that tends to accompany arguments for negligence.  If the plaintiff can argue that Fox News was negligent in reporting this suicide, the plaintiff may be able to claim damages for emotional distress.  It is not clear whether the plaintiff is pursuing this theory, since the article indicates she is suing for "infliction of emotional distress."

This strategy is not foolproof however.  Under the Hand formula for negligence, the plaintiff would need to argue that the precautions that Fox News could have taken to prevent her distress would have been less costly than the harm she suffered multiplied by the probability of this harm.  Fox News would have a strong argument that there was a low probability that a person in a car chase would shoot himself.  On the other hand, many news agencies delay their broadcasts by a few seconds, so there may have been low-cost measures Fox News could have taken to avoid harm.

On yet another hand, however, this seems to raise interesting questions about the live broadcasting of disasters or terrorist attacks.  If Fox News were to report on a story more newsworthy than an exciting car chase, say an ongoing terrorist attack, and if this story were to show victims being killed, could the families of the victims sue Fox News for infliction of emotional distress?  This lawsuit intuitively seems less meritorious, and this intuition may be bolstered by recognizing that altering the coverage of events like terrorist attacks may have a much higher cost than altering the coverage of car chases.  Calculating these comparative costs seems to require some determination of the newsworthiness of events as measured by the costliness of altering the coverage of the events - a task that seems to be quite difficult.

Grades and Negligent Infliction of Emotional Distress

With clerkship application deadlines closing in and with finals fading ever farther into the distance, I have been checking with growing frequency to see if grades have been posted.  I fortunately delayed on checking on one of my classes this evening until after I received an extremely apologetic email from UCLA's records office warning me that a spreadsheet error had led to incorrect grades being posted, that we should disregard the posted grades, and that corrections will be posted soon.  Curious, I decided to peek at my grade.  All I will say is that I hope that the records office had not yet fixed the problem.

This got me thinking about negligent infliction of emotional distress (NIED).

Most law students at UCLA despise NIED because one of our earliest writing assignments, the dreaded "Hummel Memo" requires us to put together an objective memo concerning an NIED lawsuit.  Los Angeles offices and agencies that employ students during the summer following their 1L year are intimately familiar with the Hummel memo as a common writing sample that students send in their applications.  In this culture of irritation, whimsy, and war stories, students often forget that they are learning about a valuable area of law that may be of practical use...say in a situation where somebody with a duty of care towards another person neglects that duty of care, resulting in severe emotional harm towards that other person.

In California, some lawsuits focus on lawsuits filed by a bystander to an accident.  These lawsuits proceed under Thing v. La Chuza, 48 Cal.3d 644, 648 (1989) which requires that the plaintiff "(1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness." This is the rule that all UCLA students know (or knew when they were 1Ls).

This standard may be somewhat relevant for a situation where a records office negligently posts the results of a flawed grading spreadsheet. For example, say one of my family members is present when I open the page with the mistaken grade. This family member witnesses me let out a blood curdling scream and then keel over from a massive heart attack. The family member might have a viable NIED claim against the school.

While this approach is feasible given the typical law student reaction to poor grades, the savvy law student may be able to file suit without relying on a traumatized family member. Beyond Thing, California allows NIED suits in situations involving emotional damage resulting from sensitive relationships. For example, in Davila v. County of Los Angeles, 50 Cal.App.4th 137 (1996), the court of appeals held that a coroner has a duty to act with reasonable diligence to find a family member of a recently deceased person before cremating that person. An overhasty cremation may lead to an NIED suit since negligent conduct in this situation is likely to cause a serious emotional disturbance. Law students may argue that university employees in charge of posting grades are in a position where negligent actions are likely to cause severe emotional distress. Because of this special position, a negligent posting of a horrible Evidence grade may give rise to an NIED suit.

A final practice pointer: this strategy may work for classes where the posting of a terrible grade causes emotional shock and pain. This strategy is less feasible for classes where nothing but a terrible grade is possible, which removes the element of surprise from the negligently posted grade. For this reason, students in Federal Courts and Corporate Taxation should not rely on the strategies outlined in this blog post.