AI and Liability

Earlier this month, a German court ruled that Google is liable for its AI search summaries. Rejecting defenses like “users can check for themselves,” and that they generally know “that information generated with AI should not be blindly trusted,” the court held that the AI’s summaries are reflections of the company and “above all an expression of Google’s business activities.” This is the latest skirmish in a decades-old battle over internet publishing. Historically, there were two different types of information distributors: carriers and publishers. A phone company is a carrier. It’ll transmit whatever you say, even discussions about committing a crime. Words are words, and the phone company does not know—nor is it liable for—the words you choose to speak. A newspaper, on the other hand, is a publisher. It decides the words it publishes, and what quotes to include in its articles. If those words or quotes are defamatory or otherwise illegal, it’s liable. Internet companies have long tried to play both ends of this distinction. They claim to be a carrier when it suits them, and also to be a publisher when that is advantageous. Section 230 of the 1996 Communication Decency Act enshrined this straddling when it shielded internet providers from liability for the speech of others on their platforms: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” For years, a debate has continued about how to apply this law to social media platforms. When platforms merely displayed people’s posts and comments in reverse-chronological order, they behaved largely like carriers, relaying people’s words without regard to their contents. But the next generation of platforms, like Facebook, curated feeds with algorithms and thereby acted more like publishers, making editorial decisions about who sees what. Some experts think section 230 has gone too far and needs reform ; others think that it’s what holds the modern internet together. Google’s AI overviews are far less nuanced. They work differently from traditional search, which courts have held involves archiving and facilitating access to the editorial content of third parties. AI overviews don’t just quote and republish words from different websites. With overviews, the AI rewrites other people’s words, exercising editorial discretion like a newspaper article or an original essay on a topic. It’s not only Google’s AI that falls into this category. Imagine a restaurant review site that provides AI summaries, or a site summarizing laws and government procedures. Or a traditional publisher that uses AI to summarize its own publication. Accuracy matters, and liability is one of the most important ways we as a public can demand accuracy and hold companies accountable when t