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David Ardia on the Feudal Origins of Defamation Law

In my conversation with David Ardia for my story about Manti Te'o, we discussed a number of fascinating topics, particularly his research into the feudal basis of current defamation law. Ardia, who is co-Director of the Center for Law and Media Policy at the University of North Carolina and a fellow at Harvard's Berkman Center for Internet and Society, also spoke about how the Internet provides solutions as well as problems regarding the matter of false speech, and how we may need to look outside of the law for remedies.

Here are some excerpts from our conversation:

What kind of society were current laws meant to protect?

It was from a feudal system. It was meant to preserve a certain hierarchy, a social hierarchy that was stable. It was meant to deal with kinds of statements that could harm reputation where the understanding of what people would view negatively was relatively well-dispersed throughout a community, and it's not a doctrine that really is terribly flexible.

On how modern times have made that system obsolete.

It isn't just the Internet that has made defamation law less relevant. It's that a legal system built on providing damages for speech that harms reputation, that a set of doctrines that were developed around preventing commoners from saying negative things about their social superiors -- which was how defamation law initially developed, and the doctrine hasn't evolved that much since then -- that, as a tool for dealing with the kinds of speech that harm reputation today, it's just not capable of doing so.

On why court rulings used to be more effective.

The defamation trials were embedded within the small communities themselves, where the reputational harm occurred, where the speech occurred, and where the punishment or liability if there was any would play out, and that is not the world we live in today. The courthouses are not part of most people's communities, a court's decision in a faraway locale is unlikely to have much of an effect in correcting someone's false speech that harms their reputation.

On the impact of the Internet.

It both brings the possibility for much quicker, much more amplified harm that can come from false speech, without a doubt, the Internet does that. But it also brings the opportunity for correction in a way that older communication technology didn't provide at all.

On how the Internet provides opportunities to correct falsehoods. 

What the Internet has done is it's broken down existing feedback mechanisms that used to operate within physical communities. But now, there are efforts to build other layers within the communication systems to replicate those sorts of things. And so I mention an IBM/University of California-Berkeley effort to create a sort of overlay that works within web browsers to highlight information that others feel is not true, and it's color-coded based on how great the opposition is to the statement. So the Internet gives us these tools, and we're in a very nascent stage of development, but my expectation is that over the next decade or two, a lot of effort's going to be put into that. Because people want and desire information that's reliable to them.

On how extra-legal solutions represent the best way forward.

My solution is not that we should roll up our sleeves and look to reform defamation law in the hope that we can come up with a set of doctrines that will right the boat and make everything work again. I'm much more optimistic that other non-legal solutions will be the way forward for dealing with reputational harms.

On our digital age.

There is a great deal more information available to people today because of the Internet than ever in our history. But yet we have great problems separating the wheat from the chaff. We really haven't developed both cognitive skills, with which individuals can assess information, and we haven't developed technical skills. We haven't built into our communication networks good tools for differentiating the reliable from the unreliable.

 

Jamie Berk