Property Rights to Information

Jamie Lund, St. Mary's School of Law

Abstract

Laws against defamation regulate information sharing by correcting misstatements of fact in order to protect reputations. One benefit of enforcement of defamation laws is the reduction of information pollution. Misinformation increases search costs and thereby reducing efficiency in the procurement of accurate information. First Amendment protection over false speech has expanded over the last half century, decreasing the occurrence of defamation suits, leaving the information field wide open for information pollution undeterred by defamation suits. The market for information has changed dramatically with the popularization of the Internet, the exponential growth of speakers in the past decade, and the corresponding democratization of speech. These shifts have made modern media particularly vulnerable to harm from information pollution for two reasons. First, modern suffers from a tragedy of the commons—the idea that anyone can say anything without being punished for spreading misinformation. Second, misinformation in digital form is particularly harmful because it potentially lasts forever, significantly increasing its harm. Granting property rights is a typical solution to prevent pollution of a commons and can be used in the information context. Instituting an enforceable but limited property right to an individual’s readily verifiable personal information would incentivize individuals to maintain their own small corner of the information commons, decreasing the harm from information pollution. The property right may be structured to minimize chilling effects on speech through safe harbor provisions and limited access to monetary damages.