Did Mark Zuckerberg intend to harm or offend anyone when he created Facemash back in ’03? The answer to this question might depend on the burden of proof. In general, when someone is accused of wrongdoing like hacking or theft (or sexual harassment or sexual assault), who has the burden of proof (the accuser or the accused?), and what should the burden of proof be? In brief, the process of adjudication must be fair. Persons accused of misconduct have the right to due process. But what is “due process”? At a minimum, due process requires notice and a hearing: the accused must be given adequate notice of the charges against him, he must have an opportunity to defend himself, and his case must be presided over by an impartial judge or decision-maker. In addition, due process requires that the burden of proof be imposed on the accusing party, not on the accused. Simply put, when one accuses someone of breaking the rules, the accused party is generally presumed innocent. It is the accuser who must produce sufficient proof that his allegations are true. But how much evidence is enough to prove one’s case? It turns out there are many different levels of proof in the North American legal system:
Alas, it’s not clear what burden of proof the Ad Board used in the Facemash case. Beyond the friendly confines of the Ivory Tower, courts use different burdens of proof, depending on the type of case it is hearing. In criminal cases, the prosecution must prove its case beyond a reasonable doubt, but a much lower burden of proof is used in most civil cases (i.e. cases for money damages): the preponderance of the evidence or “more likely than not”. In other words, when one party (the plaintiff) sues another (the defendant) in tort or for breach of contract, the plaintiff wins if his story is more believable than the defendant’s.
Going back to the Facemash incident, considering that Zuckerberg was facing possible expulsion, what burden of proof should the Ad Board have used? Among other things, he was accused of infringing copyrights and invading privacy, actions that could in theory generate both civil and criminal liability! But at the same time, Harvard is a private institution, so shouldn’t it be free to use whatever burden of proof it wants in student misconduct cases? As we shall in my next blog post, it depends … It depends on whether you adopt a broad interpretation of Title IX or a narrow one!
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