Liability for Defective Information for Dummies

The modern digital economy is driven by the production and consumption of information.

Every day, individuals and organizations use informational content made available through a variety of “publishers” to perform tasks.  Publishers of information make information content available to society and include publishers of books, magazines, mobile applications, television, websites, podcasts and the lists goes on and on. The availability and access to this information has transformed society.

However, what happens when these publishers communicate defective information that leads to injury? Are these publishers somehow responsibility for liability of damages because they made it possible for the defective information to be used by the injured party?

Before we address how to think about liability for defective information, let’s start with an easier analogy by reviewing one form of liability when applied to defective products.

Sellers and Strict Product Liability

Products are created by manufacturers and made available to the public through sellers. Sellers could be distributors, suppliers and retailers that all contribute to the making the product available to the public.

If a product defect leads to physical harm to persons or property caused by the product defect, both the manufacturers and the sellers could be held “strictly liable” for the damages. “Rather than focus on the behavior of the manufacturer (as in negligence), strict liability claims focus on the product itself. Under strict liability, the manufacturer is liable if the product is defective, even if the manufacturer was not negligent in making that product defective.”[1]

If manufacturers create physical products, then in the information world, authors create information content. Similarly, if sellers make goods available to the public, publishers make information goods available by fixing the information content in a medium such as book, magazine or accessible web-page.

Hypothetical Examples of Publishers Making Available Defective Information

Let’s draw parallels from how products can be defective to how information can be considered defective with some hypothetical examples.

Defects by omission: Imagine an online travel guide that provides informational content describing various locations and subjects with the intent to help the general public make choices regarding tourist travel desintations. One of the guides showcases the Hawaiian Islands. A person using the travel guide decides to visit Cakeha beach and partake in normal beach activities such as surfing. The travel guide did not have information detailing known dangerous ocean conditions at a Cakeha beach. In the course of surfing, the person receives injuries on the beach when trying to surf.

Defects by Incorrectness: Imagine there is a DVD-based science encyclopedia that contains articles written by independent users.  One of the authored articles showcases different types of mushrooms and details facts about whether the mushrooms are poisonous or non-poisonous. However, there is a factual error in one of the mushroom articles. A person using that information eats a mushroom portrayed in the book as safe to eat, but then gets sick and incurs bodily injury.

Defects by Intentional False Portrayal: Imagine you have an online community with the capability to showcase personal information in online profiles. Now a male individual creates a fake online profile with details of a previously engaged female partner. The online profile has fabricated information and address information of the female individual. Before long, men whom the female individual did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.

Imagine a World with Strict Liability for Information Content

There is good reason for why the courts have not classified defective information within the same liability constructs as physical products.

Imagine a world in which product liability applied to information. Since sellers of products can be held liable for defective products, publishers of defective information content created by authors would also be held liable. Therefore, publishers would have to incur the extra burden of verifying the information content of the authors lest risk being dragged into a lawsuit along with the authors. Such a world would most likely reduce the amount of published materials available to the public and reduce societal benefit.

Extend the notion of a publisher to every internet service that can presumably “host” content created by authors. Holding strict liability for information content would destroy the very notion of the internet as a vehicle for distribution information content.

Publishers Generally not held Strictly Liable for Defective Information

The courts in a wide variety of cases have consistently ruled favoring that publishers of content are generally not held strictly liable for defective information.

The three examples actually stem from cases where courts have ruled in favor of publishers.

  • Omission: Birmingham v Fodor. Instead of an online travel guide, the travel guide was a physical book. The court ruled that “a publisher of a work of general circulation, that neither authors nor expressly guarantees the contents of its publication, has no duty to warn the reading public of the accuracy of the contents of its publication” [2]
  • Factual Incorrectness:  Winter v. Putnam. Instead of a DVD encyclopedia, the content was contained in a book. The court stated that “we conclude that the defendants have no duty to investigate the accuracy of the contents of the books it publishes. A publisher may of course assume such a burden, but there is nothing inherent in the role of publisher . . . to suggest that such a duty should be imposed.”[3]
  • False Portrayal: Barnes vs. Yahoo. The online community is Yahoo’s member directory. The court held that according to section 230(c)(1) of the Communications Decency Act “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This provision further reduces the liability of defective content for internet provides.[4]

Liability of defective information: A decision flow to information service providers

“So, do we liable when our content go wrong and someone gets hurt by it?” One may ask as a service provider. Here are some basic principles you can apply to determine if any possible legal responsibility you will be charged:

Q1: Who is the creator of your content? A service user or an employee from your company?

This is the first question you need to decide. In the early stage of Internet development in last century, the contents of websites were mostly created by service providers. They were acted as “authors” to create meaningful information for users. However, nowadays when the social platforms are booming, more and more contents are now generated by their users. The website service providers are now acted as “publishers” to expedite information to every users connect to their services. When users get hurts by the defective information provided by service providers, the role of service providers as “authors” or a “publishers” determines whether they have the liability.

If you are not the content creator and only act as the publisher, then you are protected by Cardozo v. True , 342 So. 2d 1053 and not liable to any harm as it described:

“The ideas hold a privileged position in our society. They are not equivalent to commercial products. Those who are in the business of distributing the ideas  of other people perform a unique and essential function. To hold those who perform this essential function liable… restrict the flow of the ideas they distribute”

Some lawsuits belong to this category and have been dismissed by court:

– Birmingham v. Fodor’s Travel Publications, Inc. [2]

– Beckman v. [6]

Q2: Is the information foreseeably attributed to harm under expected usage?

If you are the “author” of defective information due to the defective contents are generated by employee actions or contributions, then this will be the next question to examine your liability. And if the answer is “No”, you won’t liable for the defective information.

Take Rosenberg v. Harwood (and Google) as example, Mrs. Rosenberg alleges that Google Map service negligently provided her walking directions that caused her seriously injured by car accident.  The court dismissed the claims against Google based on two reasons: 1) As an information service provider, Google has no duty for unexpected usages conducted by it users and 2) there is no foreseeability of harm caused by third party.

It is not reasonable for courts to force you to verify every potential usage and following consequence by end-users, and such a decision would create unjustifiable burden on your service.

Some similar cases can be found as listed below:

Gibson v. Craigslist [7]: Craigslist sued for liability related to guns posted for sale on site

Barnes v. Yahoo [8]: Yahoo sued for allowing posting of defaming information from ex-boy friend

Harris v. Google [9]: Google sued for incorrectly listing personal address of a business owner thereby preventing customers from finding address of the business

Q3: As a service provider, do you have the duty to warrant the information under correct usage?

If your answer to the second question is yes, here is the third examination. If you present information in a “professional or expert” fashion whereby the reasonably perceived usage of your defective information leads to directly attributed harm, you are liable to the service you provided. Aetna v. Jeppesen provided a clear example when the erroneous scales of charts lead to aircraft accident.  The charts are served as product that the contained information should be warranted by the service provider under correct usage. Information in this category should be treated as normal product that providers have duty to guarantee the quality of the information.


 By Derek Kuo and Christopher Fan