In a ground-breaking legal development, Brian Hood – the mayor of Hepburn Shire in Victoria – declared that he is preparing to file the world’s first defamation lawsuit against the artificial intelligence (AI) program ChatGPT. Hood alleges that ChatGPT has “falsely named him as being involved in a foreign bribery scandal,” which is a claim that severely impacts his reputation.

On 21 March 2023, Hood’s lawyers issued a concerns notice to the owners of ChatGPT allowing them 28 days to address their errors or risk facing a defamation lawsuit. If Hood chooses to take legal action against ChatGPT, his case would set a precedent for future defamation matters involving AI.

What is defamation?

Defamation occurs when an individual or business’s reputation has been wrongfully attacked in a written or oral statement to a third party. Before defamation proceedings can commence, a concerns notice must have been served to the publisher of the defamatory statement.

What is a concerns notice?

A concerns notice, as defined in s 12A Defamation Act 2005 (NSW), is a written notice which provides the publisher of a defamatory statement with details of how their statement has a defamatory meaning that caused, or has the potential to cause, harm.

The publisher may respond to this concerns notice through an offer to make amends. An offer to make amends may be provided within 28 days of the concerns notice being served. It must be in writing and may include:

  1. An offer to publish a reasonable correction, clarification or additional information about any particular defamatory imputations
  2. An offer to inform the third party that the imputations are, or may be, defamatory in nature
  3. An offer to pay for any expenses incurred by the aggrieved person whilst considering the offer and before the offer was made.

In Hood’s matter, his lawyers served a concerns notice to the owners of ChatGPT (OpenAI) to rescind the false claims that Hood was imprisoned for bribery.

To learn more about concerns notices, please visit our website.

How does defamation apply to AI?

Hood argues that the owners of ChatGPT should be responsible for the defamatory imputations it produces. With AI, however, the onus is less clear because ChatGPT does not cite the original sources that it uses to generate its content. This makes it near impossible to attribute defamatory content to a specific author.

In another case relating to technology and defamation, Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, the High Court ruled that Australian media outlets can be held liable for “defamatory third-party comments on their social media posts.”

This case began in 2017 when Dylan Voller sued media companies such as the Sydney Morning Herald, Sky News and The Australian for comments posted by Facebook users. The Court found that in creating, administering and controlling the content posted on their public Facebook pages, the media companies encouraged and facilitated the publication of third-party comments. Accordingly, the Court held that the media outlets were rendered publishers of the defamatory comments.

In recognising media companies as liable for third-party comments, Voller’s case sets a precedent for attributing defamatory imputations to the owners of an original post, and not the comments themselves. In the matter of AI, this ruling makes it plausible for OpenAI to be held accountable for defamatory material because no author/s can be verified.

The future of defamation and AI

The cases of Hood and Voller draw attention to the question of who is responsible in instances of AI defamation.

Hood’s case holds the potential to establish a new precedent relating to the ethical and legal accountability of AI platforms. As such, defamation involving AI would also impact the legal frameworks of intellectual property infringement. As AI-generated content continues to evolve, there is pressure on the government to adapt to changes in liability, regulation and defamation.

Contact Us

If you, or someone you know, has been emotionally or financially impacted by defamatory comments, we recommend seeking professional legal advice. If you would like to discuss your defamation matter with a legal professional, please contact us on (02) 9963 9800 or at [email protected].