PREVENTING THE ROGUE BOT JOURNALIST: PROTECTION FROM NON-HUMAN DEFAMATION LAUREL WITT* “The Mayor Cheats on His Taxes” reads the headline of an online newspaper article. Thousands of readers see the headline. But the article incorrectly characterizes the mayor; he did not cheat on his taxes. The false description ruins the mayor’s reputation, diminishing his chances of being re-elected. If a human journalist wrote the headline, the mayor could sue under defamation law, which holds a journalist responsible for damaging the good reputation of another. If the mayor meets his burden of proof, the responsibility for harm falls on the shoulders of the journalist. As the mayor is a public official, he would have to prove the journalist maliciously published the article, rather than negligently. What if the journalist is not human? A robot or algorithm cannot think for itself. It can be programmed to write news stories; stories which, inevitably, will harm an individual’s reputation. A plaintiff would lose in court, because the plaintiff could not show the robot acted negligently or maliciously. If the newspaper that employs the robot cannot be held liable, no incentive exists, apart from pure morality, to remove the material or issue a correction. A robot can publish any material, even false material, without the newspaper checking the stories. Where does this leave the mayor? With a ruined reputation and unemployment. The mayor—or any other individual harmed—has no recourse. This note explores defamation law and its application to an emerging technology, robot journalism. This note suggests courts should hold bots responsible for defamatory material, because the harm to the individual is greater than the value of robot speech. To accomplish this, courts can substitute defamation’s requisite intent element with the doctrine of respondeat superior. Then, this note * J.D. Candidate, University of Colorado Law School, 2017; Executive Editor, Colorado Technology Law Journal. Gratitude goes to Colorado Law Professor Helen Norton for inspiring me to study and write about First Amendment law, and to Professor Amy Griffin for her continual encouragement in the pursuit of the written word. Most of all, thank you also to my early-morning coffee provider and late-night editor, Jonathan Witt. 517 518 COLO. TECH. L.J. [Vol. 15.2 delves into why respondeat superior is the best solution for the future problem of robot defamation and the potential drawbacks. INTRODUCTION................................................................................. 518 I. BACKGROUND............................................................................ 522 A. The History and Development of Defamation Law ......... 522 B. The First Amendment ....................................................... 524 1. First Amendment Values ........................................... 525 2. First Amendment Concern: The Chilling Effect ....... 526 3. Technology and the First Amendment ...................... 526 II. ANALYSIS .................................................................................. 528 A. Problem Overview ............................................................. 528 1. Defamation Law and Developing Technology ........... 529 2. Facebook’s Trending Topics........................................ 533 B. Potential Solutions to Bot Defamation ............................ 536 1. The First Option: Eliminating Negligence from Defamation .................................................................. 536 2. The Second Option: An Administrative Law Process ......................................................................... 537 3. The Best Option: Respondeat Superior ..................... 538 a. Return to Human Actors: Who Should be Liable for Bots? ...................................................... 539 b. Defenses to Bot Defamation Litigation ................ 541 C. Policy Implications ........................................................... 543 1. Policy Drawbacks and Benefits of Applying Respondeat Superior ................................................... 543 a. Drawbacks ............................................................. 543 b. Benefits .................................................................. 545 2. First Amendment Concerns of Applying Respondeat Superior ................................................... 545 a. Surviving First Amendment Scrutiny ................. 545 b. Potential Chilling Concerns ................................. 546 CONCLUSION .................................................................................... 547 INTRODUCTION Hollywood sparked society’s imagination of advanced artificial intelligence (“AI”) by introducing computers, robots, and cars that could act and think autonomously. These AI machines allowed us to see a new world of AI possibility, and occasionally, terror.1 AI has 1. See, e.g., THE TERMINATOR (Hemdale Film Corporation 1984) (where the fictional Skynet, an artificially intelligent net-based program, attempts to destroy humanity with nuclear weapons); THE IRON GIANT (Warner Brothers 1999) (where a giant robot crash lands on earth and befriends a child); see also THE MATRIX (Warner 2017] ROGUE BOT JOURNALIST 519 since expanded beyond the imagination of filmmakers and into reality. This article will explore one facet of this expansion: the advent of the robot journalist.2 The robot journalist tale starts nearly 40 years ago when Yale researchers created Tale-Spin, the first algorithm capable of publishing simple stories and fables.3 To create the program, developers chose a few initial settings to direct the algorithm to create stories when the user input specific information. Tale-Spin used knowledge based on problem solving, physical space, interpersonal relationships, character traits, and story structure to create the simple stories.4 Researchers developed the program with rudimentary technology considered revolutionary at the time. Programmers took this revolutionary technology, tweaked the algorithms, and created a whole new subset of technology: robot journalists, or “bots.” Programmers crafted bots to autonomously write news stories. Bots use algorithms to process large amounts of data to publish stories for the newspapers.5 The data comes from various Internet sources, pre-set by the programmers. After the bot gathers the data, the bot pushes it through a library of pre-set “angles” which give human interpretations to the data, such as underdog winning or a significant drop in the stock market.6 Bots, like the New York Times 4th Down Bot7 and the LA Times Quakebot,8 publish a wide range of news stories from sports highlights to the weather.9 Programmers designed bots to not only write stories, but to Brothers 1999) (based on the premises that robots used humans to create electricity and power robot civilization); TRANSFORMERS (DreamWorks 2007) (where alien robots convert to independently thinking cars); Ghost in the Machine, THE X-FILES, Season 1, Episode 7 (aired Oct. 29, 1993) (where the central operating system of a company kills humans to protect itself from being turned off). 2. When referencing “bot journalists,” this note refers to the algorithms capable of producing news stories for newspapers and other news outlets, rather than a functioning bot depicted in movies such as the IRON GIANT, mentioned above in note 1. 3. JAMES MEEHAN, TALE-SPIN: AN INTERACTIVE PROGRAM THAT WRITES STORIES (1977). 4. Id. 5. Amy Webb, Robots are Sneaking up on Congress (Along with Four Other Tech Trends), WASH. POST (Jan. 9, 2015), https://www.washingtonpost.com/opinions/robots- are-sneaking-up-on-congress-along-with-four-other-tech-trends/2015/01/09/1fde310e- 9691-11e4-aabd-d0b93ff613d5_story.html [https://perma.cc/E8U7-RWSZ]. 6. Nicholas Diakopoulos, Bots on the Beat, SLATE (Apr. 2, 2014, 7:27 PM), http://www.slate.com/articles/technology/future_tense/2014/04/quake _bot_4th_down_bot_robot_reporters_need_some_journalistic_ethics.html [https://perma.cc/MNC8-GLAP]. 7. NYT 4th Down Bot (@NYT4thDownBot), TWITTER, https://twitter.com/NYT4thDownBot [https://perma.cc/Y3TB-YMJK] (last visited Mar. 21, 2017). 8. Will Oremus, The First News Report on the L.A. Earthquake was Written by a Robot, SLATE (Mar. 17, 2014, 5:30 PM), http://www.slate.com/blogs/future_tense/2014/03/17/quakebot_los_angeles_times_ robot_journalist_writes_article_on_la_earthquake.html [https://perma.cc/NZ9W-56DY]. 9. Diakopoulos, supra note 6. 520 COLO. TECH. L.J. [Vol. 15.2 identify how valuable the story is. Bots take the angles and the data to publish a story using its natural language. Programmers create the bank of natural language and the angles at the bot’s creation.10 Programmers also input “newsworthiness criteria,” which gives a bot the ability to determine the importance of the article. The bot then publishes the article in strategic places on the newspaper’s website based on the newsworthiness of the article.11 This process can occur quickly, allowing newspapers to publish information within minutes of an event, giving the newspaper the edge on the latest news. The resulting quickest-to-press edge draws a larger reader base, as readers want to be up-to-date on the latest news. Newspapers save time and costs by employing bots, but human journalists fear decreased employment opportunities.12 Human journalists process large amounts of data for newsstories slowly, because of the required manpower to sift through Internet sources. Bots accomplish the same process in minutes.13 Because of the quick turnaround