It’s a fair question: will Section 230 protect ChatGPT & other AI chatbots like social media companies assert it does for them? Sounds like probably not.
That’s the question that Cassandre Coyer discusses in her article on Legaltech® News (ChatGPT Faces Defamation Claims. Will Section 230 Protect AI Chatbots?, available here). Of course, she discusses the SCOTUS rulings from last week (which we covered here) where SCOTUS ruled no liability for Google and Twitter in their respective cases. However, they failed to address protection under Section 230 of Title 47 of the United States Code, finding neither company had any underlying liability to need the protections.
However, as claims of defamation against AI-powered chatbots like OpenAI’s ChatGPT start to arise, it’s unclear whether these platforms could benefit from the same protections available to other online providers under Section 230. One of those potential claims arose last month when a regional Australian mayor (Brian Hood) threatened to sue OpenAI if it did not correct ChatGPT’s false claims that he had served time in prison for bribery (conversely, he was a whistleblower on the bribery scheme).
I know firsthand about ChatGPT getting facts wrong about a person – though, in my case, they made me sound more impressive. 😉
Regardless, the crux of the question of will Section 230 protect ChatGPT & other AI chatbots is whether the outputs generated by AI-powered chatbots can be considered third-party content. That’s what it takes to be protected under Section 230.
But to answer this question, one would need to look under these chatbots’ hoods, noted Eric David, partner at Brooks Pierce. In fact, while in some cases AI-powered chatbots simply paraphrase or summarize information already available on the internet, which would qualify as third-party content, in other instances it generates new information—including when bots “hallucinate.”
“I think it’s going to be very hard for the creator of that website, ChatGPT or whatever it is, to apply Section 230, to get the benefit of Section 230, because they are creating the content,” he explained.
As Coyer notes, the Washington Post asked the people behind the law what they thought. And U.S. Senator Ron Wyden (D-OR) and former House Representative Chris Cox (R-CA), who co-authored the law, seemed to have a pretty clear answer.
“AI tools like ChatGPT, Stable Diffusion and others being rapidly integrated into popular digital services should not be protected by Section 230,” Wyden said in a statement to the Post. “And it isn’t a particularly close call.”
Meanwhile, Cox said that, “to be entitled to immunity, a provider of an interactive computer service must not have contributed to the creation or development of the content at issue.” He added, “So when ChatGPT creates content that is later challenged as illegal, Section 230 will not be a defense.”
Megan L. Meier, a lawyer at Clare Locke, where she recently represented Dominion Voting Systems in its defamation litigation against Fox News, said she expects to see more litigation ahead, especially regarding deepfakes. She also argued that Section 230 won’t shield companies from defamation claims.
More litigation about AI for which eDiscovery solutions leveraging AI will be used. That figures. 😀
So, what do you think? Will Section 230 protect ChatGPT & other AI chatbots from liability? Please share any comments you might have or if you’d like to know more about a particular topic.
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