Fact-Checking Servers to Reduce Libel Risk

Jul 4, 2033
PALO ALTO–In December, three of the top five U.S. ISPs plan to install new software to reduce the risk that their customers will be exposed to libel and gossip liability for content that they post. The software, developed by Black Hole Skunkworks, a joint venture of Stanford University and a consortium of newspaper and publishing multi-nationals, screens all user-generated content, alerting posters to possible legal liability for dissemination of libelous or gossipicuous information.

U.S. Supreme Court validation last year of the Responsible Network Speech Act has given the green light to a series of high-profile “personal liability” and “gossip” suits against posters with deep pockets. In Hanks v. Oinks a Ninth Circuit Appeals Court ruled that traditional First Amendment protections permitting publication of potentially libelous information by members of the press did not apply to individual on-line posters. Three months later, upholding a $19 million judgment of liability for “re-publishing, re-posting, or disseminating the libelous statement of another,” the Supreme Court, on a narrow 5-4 margin, affirmed for the first time that civil liability for “gossip” did not violate Constitutional principles.

“The Court had to settle the issue one way or another,” explains Columbia Law Professor Egger Shriev. “The openness of electronic media has created unprecedented opportunities for individuals to reach audiences previously only reachable by the traditional press. Most of us expected the Court to explicitly extend press protection to individuals, but the influence of the strict textualists was too great.”

The fact-checking software developed by Black Hole, according to company promotional materials, offers posters “protection from liability for inadvertently libelous or gossipicuous posts.” The software processes all of a user’s uploaded data through a parser that identifies the “propositional content” of the posts, which is then encoded in a low-profile, “Eigen-assertion” stored on the local client. A peer-to-peer query then searches for clients who have posted matching assertions. User-configurable lists determine which matching sources the user trusts for verification. Default configuration permits assertions to be confirmed by articles published by newspaper and magazines that have partnered with Black Hole.

Posts that could be confirmed by such major publications, however, have not been at the heart of recent court cases. The Oinks case, for example, dealt with a post on a semi-public discussion board in which a Peoria man described his neighbor as “a stinky, rude, bum” and a “mouth-breather.” Such posts are unlikely to be confirmable by citation of the traditional press. Black Hole addresses this problem by focusing its peer-to-peer query on sources judged to be likely to confirm the assertion, and then returns a weighted evaluation of the liability risk. “If Oinks had run our software, the query would have looked, for instance, for confirming assertions made by other neighbors, by Hanks’ family members and co-workers, ” explains CEO Pauline Snipe. “And, I feel pretty confident saying this, it would have warned him not to make the post.”

Free-speech advocacy groups frustrated by the recent run of court rulings consider the announced software a mixed blessing. “We’re happy this software exists in this difficult speech climate,” notes ACLU spokesperson Jack Jack. “To the extent that it gives individuals the confidence to speak, it should do something to ameliorate the chilling effect of the Act and the Court’s endorsement of it. On the other hand, to the extent that it makes things easier for people, it makes it harder for us to mobilize opinion against the seriously wrong-headed direction U.S. law has taken.”

“This is really just a ploy by traditional press and media to maintain their monopoly on dissemination of information,” points out media watchdog group EyeSpy spokesperson Henriette Oll. “Who do you think lobbied for the Responsible Speech Act? The same companies that have partnered with and invested in Black Hole. By ensuring that individuals would be held to a stricter standard than they would, the corporate run ‘Press’ was tightening their grip on information. And now they want to ‘protect’ us by selling us software that tells us not to say anything that isn’t confirmed by something they’ve already said? It’s about time we realized that the corporate Press doesn’t even give a shit about its own freedom, let alone ours.”