University of New South Wales Faculty of Law Research Series
Opinionated Software
Article comments
This paper will appear in the Vanderbilt Entertainment and Technology Law Journal (forthcoming). This paper may also be referenced as [2007] UNSWLRS 26.
Abstract
Information security is an important and urgent priority in computer systems of corporations, government, and private users. The confidentiality, integrity, and availability of digital information is constantly threatened by malevolent software, such as computer viruses and worms. Virus detection software announces the presence of a virus in a program by issuing a virus alert. A virus alert presents two conflicting legal issues. A virus alert, as a statement on an issue of great public concern, merits protection under the First Amendment. The reputational interest of a plaintiff disparaged by a virus alert, on the other hand, merits protection under the law of defamation. The United States Supreme Court has struck a balance by constitutionalizing the common law of defamation in a series of influential decisions. The article focuses on two implications of these decisions, namely (i) the plaintiff must show that the defamatory statement is objectively verifiable as true or false, and (ii) the plaintiff must prove its falsity with convincing clarity. The defendant may prove the truthfulness of the statement as a defense. The crucial issues in these implications are truth, falsity, and verifiability.
The article analyzes the balance between the conflicting legal rights associated with a virus alert. It focuses on the legal meanings of truth, falsity and verifiability of a virus alert, and resolution of these issues in the context of the technology involved in a virus alert. The analysis merges perspectives from constitutional law, the law of defamation and information technology. Insights from theoretical computer science demonstrate, for instance, that the truth of a virus alert may be unverifiable. In such a case the alert would receive full constitutional protection under the Supreme Court's First Amendment defamation jurisprudence.
Subject Area
Computer Law, Law and Technology
Recommended Citation
Meiring de Villiers,
"Opinionated Software"
(April 2007).
University of New South Wales Faculty of Law Research Series.
University of New South Wales Faculty of Law Research Series.
Working Paper 26.
http://law.bepress.com/unswwps/flrps/art26
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