by Dr. Michal Lavi

Policymakers can dictate public conduct by imposing rules, but may also prod behavior by nudging or directing people into predictable actions without significantly changing their economic incentives. To date, scholars discussed the benefits of this discreet method of influence; but almost completely ignored the possibility of negative influence on third parties, that is nudges that promote libelous speech, dissemination of fake stories or behavior that the law discourages.

The article “Evil Nudges” strives to fill in the gap. It deals with the question: should those who influence the public bear liability in torts for creating evil nudges? The idea of assigning duty of care to those who nudge is revolutionary in its own right. This article takes this idea one-step further and focuses on a particular case: to what extent liability may be imposed on web designers and hosts who nudge their users to offensive behavior. This case study provides a natural starting point for considering liability for evil nudges, as designing effective nudges is much easier in a technological connected environment than in a brick and mortar world.

Nudges are very common online; website names, pre-written drop-down menus and other encouragements enable website designers to influence users’ decision-making and the tone of the content they create. The use of big data, artificial intelligence, psychographic profiling and the growing use of Internet of Things (IoT) technologies enables unprecedented connectivity, accurate personalization and hyper-influence on others.  Nudges’ profound influence can change social behavior, shape the shape of public discourse and influence political security and democracy. How should the law react to this? The Article takes the first step towards providing a theoretical framework for third-party liability and adjusting tort law to meet the challenges of the twenty-first century.

Since the internet is gaining importance in modern day lives, significant harm to third -parties may be caused due to malicious speech, disinformation and fake stories published online. The damage is often exacerbated due to negative nudges that are becoming a major problem as technology develops and allows nudging in sophisticated way that were never seen or heard of before. As a result, courts will soon require a theoretical framework according to which they could base their decisions. This Article offers an innovative model that narrows §230’s CDA immunity and strikes a balance between free speech and tortious speech in an efficient manner, while tackling possible hurdles of First Amendment.

The Article draws on network theory, psychology, and marketing in order to define the extent of nudges and how exactly they influence users. The result is a new taxonomy of nudge ideal types that web designers and hosts use to influence their users. The article argues that nuanced differential guidelines can decide the scope of liability. Once the types of negative nudges are identified, the article determines the appropriate regime that the courts should apply on those who purposefully push others to commit tortious activities. It does so while taking into account basic principles of tort law, as well as freedom of speech, reputation, fairness, efficiency, and the importance of promoting innovation.

Although the Article focuses on defamation law it has much broader promise in understanding online influence and could be the first step for conceptualizing influence outside the scope of defamation law, in the era of manipulation and hacking human consciousness; for example, Facebook-Cambridge Analytica Scandal. Thus, it will serve as a springboard for scholars and policymakers in outlining policy in related contexts of influence.

Dr. Michal Lavi, Postdoctoral fellow, University of Haifa Faculty of Law, The Center for Cyber Law and Policy; Fellow Cyberlaw program, Hebrew University  Cyber Security Research Center; Cheshin Fellow Hebrew  University.


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