Grochowski on Algorithmic Speech Harm

Mateusz Grochowski, Tulane University School of Law; Yale Law School Information Sosciety Project; Yale Law School Center for Private Law, has published Algorithmic Speech Harm. Here is the abstract.

This paper examines the potential application of product liability doctrine to content moderation and recommendation algorithms employed by social media platforms. Emerging scholarship and evolving case law suggest that product liability could provide a viable legal pathway to circumvent the limitations imposed by Section 230 of the Communications Decency Act. The article critically evaluates this proposition and delves into the doctrinal foundations of product liability to assess its capacity to address harms inflicted on consumers by algorithmic systems. A central focus of the analysis is the development of a more precise definition of the harm that usersunderstood here as consumers-may suffer due to defective algorithmic design. The paper argues that this concept of harm must be framed in a distinctive way: one that remains rooted in established principles of product liability while also accounting for the specific nature of the 'speech infrastructures' provided by online platforms. This is particularly important given the intangible and often immaterial character of algorithmic harm, as well as the pervasive role of automated, data-driven personalization in shaping user experience. Building on these considerations, the paper proposes a conceptual framework for understanding algorithmic harm. It also advocates for the extension of key consumer protection principles to the social media context, and for recognizing content moderation as part of a broader category of consumer-facing services shaped by the dynamics of the digital economy.

Download the article from SSRN at the link.