Evil Nudges

Michal Lavi · 21 Vand. J. Ent. & Tech. 1

Abstract

The seminal book Nudge by Richard Thaler and Cass Sunstein demonstrates that policy makers can prod behavioral changes. A nudge is “any aspect of the choice architecture that alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives.” This type of strategy, and the notion of libertarian paternalism at its base, prompted discussions and objections. Academic literature tends to focus on the positive potential of nudges and neglects to address libertarian paternalism that does not promote the welfare of individuals and third parties, but rather infringes on it—a concept this Article refers to as “evil nudges.” This kind of choice architecture, which negatively influences individual behavior, raises a variety of legal questions and challenges that policy makers must address; yet it remains under-conceptualized.

Should the law recognize liability for evil nudges that result in bad faith influence? This Article aims to answer this question. It suggests the inclusion of nudges within tort law, arguing that nudges can and should be subject to third-party liability. The inclusion of evil nudges within tort law can be explored broadly, but this Article focuses on one particular case study: the liability of online intermediaries for speech torts caused by evil nudges. This case study provides a natural starting point for considering liability for evil nudges, as designing effective nudges is much easier in a technologically connected environment than in a brick-and-mortar world.

This Article demonstrates that online intermediaries are not just passive middlemen. They influence decisions through website design and promote behavioral change among internet users. The use of big data, the use of artificial intelligence, and the growing use of Internet of Things (IoT) technologies enables unprecedented hyperinfluence. Drawing on network theory, psychology, marketing, and information systems, this Article further demonstrates how nudges influence the process of information diffusion in digital networks. It shows that by nudging, intermediaries can amplify the severity of speech-related harm.

This Article introduces an innovative taxonomy of nudges that online intermediaries utilize, and explains how nudges influence, change internet users’ interactions, and form social relations. Afterwards, it examines case law and normative considerations regarding the liability of intermediaries for choice architecture. It argues that the law should respond to “evil nudges,” and it proposes nuanced differential guidelines for deciding cases of intermediary liability. It does so while accounting for basic principles of tort law, as well as freedom of speech, reputation, fairness, efficiency, and the importance of promoting innovation.