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Cardozo Law Review

Abstract

Shaming is usually referred to as the publication of perceived anti-social or illegal behavior of an individual in order to condemn or humiliate him. It has some virtues: it makes it harder for people to get away with wrongful behavior, and it promotes justice. It also promotes freedom of expression and enables efficient deterrence. By spreading information on the behavior of individuals, shaming encourages one to maintain his reputation and facilitates beneficial transactions. Finally, it helps the public to avoid inefficient services.

Yet shaming raises many problems. Anyone can shame another based on individual, as opposed to universal, values, thus offending certain segments of society just because they are different. Shaming can also insult human dignity disproportionately. When the initiators of shaming are private citizens, as opposed to courts, it is committed without fact-checking or due process and can promote the dissemination of falsehoods. Shaming can also spin out of control and develop into a "lynch mob," violence, and harassment. Thus, an action that started with an aspiration to promote social order can lead to social turmoil.

Shaming is nothing new-people have been doing it for centuries. But the digital era makes shaming easier. Every person can write a post, publicize inappropriate behavior, and shame others. A post on the internet can travel around the world and be shared by millions of users within seconds. Digital technologies make it difficult to keep shaming under control. Thus, it can spread like wildfire, be taken out of context, and develop into defamation, harassment, cyberbullying, and even mass violence against an individual. It can harm individuals who did not violate norms or sanction individuals disproportionately.

In the digital age, forgetting has become the exception and remembering the rule. Online shaming is not ephemeral and is searchable through a simple Google query. It leaves a trail that follows the individual everywhere.

Should the law provide a relief for online shaming? If so, when and how? This Article addresses these questions and aims to provide answers. It focuses on the shaming of ordinary people who are not public figures and are not corporations. It outlines the phenomenon, and addresses shaming's virtues and flaws. Then it sets forth a taxonomy of three types of shaming: (1) "good shaming"-shaming that is initiated by the court and carried out according to a judicial decision or recommendation; (2) "bad shaming"-shaming an individual by spreading false defamatory rumors, or shaming that got out of control and evolved into defamation or harassment; and (3) "shaming the ugly behavior"-the shaming of a person by private individuals for violating the law, or norms.

This Article focuses on non-ephemeral online shaming. It examines whether search engines should remove links to search results that contain shaming, and if so, when. The Article focuses on the characteristics of digital dissemination that amplify harm to dignitary interests. It explains that the characteristics of the internet and its influences on online expressions can justify new remedies for dissemination of shaming, beyond the traditional remedies for harm that reach the threshold of criminal or tort law.

The Article overviews the benefits and shortcoming of the "right to be forgotten." It demonstrates that the benefits and shortcomings are not equally valid in all circumstances. Following this analysis, the Article argues that a dichotomous perspective that chooses between oblivion and permanent memory is inappropriate. This Article makes the case for a differential right to be forgotten that acknowledges nuances of shaming, which outlines nuanced guidelines for delisting links to search results of shaming expressions, depending on the type of shaming.

Disciplines

Internet Law | Law | Law and Society | Mental and Social Health

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