If you’ve never experienced the World Wide Web, you need to read Daniel Solove’s The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. But if you have used the Web, you’ll wonder about passages like this, rudiments that routinely crop up in the book:
When . . . bloggers find a post interesting, they will link to it. A “link” is a hyperlink, text that whisks you at a click to another webpage. The Web is interlaced with links, a giant latticework of connections between websites, where Internet traffic fires like synapses in a gigantic brain.
But forgiving these curiosities, the reader joins Solove on a whirl through some interesting problems created by the new medium of the Internet. Chiefly, personal information is persistent and amenable to copying. This means that slights and slanders can be magnified. Fairly or unfairly, the Internet can break people’s reputations.
Readers familiar with online culture will recognize the vignettes Solove uses to illustrate the issues: the Star Wars kid, the dog poop girl, Jessica Cutler aka “Washingtienne,” and so on. Perhaps Andy Warhol’s classic line about everyone’s fifteen minutes of fame can be turned on its head: Everyone stands for fifteen minutes of shame.
This is a real, and interesting, problem. So what to do about it? The book is rather thin on prescription. From time to time, Solove pops out an idea for legal solutions to reputational threats and harms. But they don’t rest on much groundwork and don’t seem to be deeply thought through.
For example, to protect better against defamatory material remaining online, Solove suggests weakening the “libertarian” protections of the Communications Decency Act, which hold Web site operators harmless for material posted by visitors. Lawsuits should lie against Web site operators, he says, after “a plaintiff first exhaust[s] informal mechanisms for dealing with the problem.”
Undefined are what those “informal mechanisms” might be. And what a playground this rule would be for victims of non-defamatory criticism. Hapless Web site hosts would have to adjudicate endless complaints from thin-skinned subjects of merited abuse. It’s a “notice and takedown” regime for defamation law.
More interesting is Solove’s suggestion that a broad duty of confidentiality should be recognized in U.S. tort law. Kudos to him for recognizing the delicate balancing that tort law strikes as it “discovers” the rules that are just. Unlike legislation and regulation – prophylactic bans or mandates put forward by legislatures – tort law allows all non-harmful behavior to go forward, picking out only the harmful for punishment.
While adopting common law privacy protections over the last 100 years, U.S. courts have not developed a parallel doctrine holding that ordinary people entrusted with sensitive information take it subject to an implied promise to keep it confidential. Perhaps courts should adopt breach of confidentiality as a tort.
This idea has many unexplored dimensions, of course. As with the privacy torts, legally cognizable damages rarely occur or are hard to prove. Sensibly, Solove argues that liability should only extend to the first publisher of confidential information online – the person who originally breaks confidentiality should be responsible and not successive republishers.
Alas, he allows for another exception that would be very difficult for Web site operators to administer: Later publishers “should be required to remove at least the last names of the harmed individuals if asked.” Imagine running a site carrying hundreds of conversations and being asked to “rewrite” the identities of participants. (Full disclosure: I run such a site, and it has happened [search the page for "stop using other person's name" - I received email demanding that I correct alleged misuse of the name used on a comment].)
It is a genuine problem, and occasionally tragic, when undeserving people are sacrificed on the altar of worldwide exposure or ridicule. But these episodes are rare given the total amount of information published on the Internet every day. Perhaps these problems are best solved through norms rather than laws. Solove quotes law professor Tracey Meares: “Social norms are better and more effective constraints on behavior than law could ever be.”
Not only social norms about what is written, but social norms about what is understood. In a sense, defamation law is a government guarantee that speech about people meets some minimal threshold of truthfulness and fairness. As difficult as this line is to police on the Internet, the better thing to do is adjust our expectations. The things we read aren’t necessarily true, aren’t necessarily fair, and aren’t necessarily the whole story.
The Future of Reputation reminds us of that, and provides good exposure to the problem of gossip, rumor, and privacy on the Internet.