TortsProf Blog

Sharkey on Online Platforms as Cheapest Cost Avoiders

Cathy Sharkey has posted to SSRN Products Liability in the Digital Age:  Online Platforms as 'Cheapest Cost Avoiders'.  The abstract provides:

Products liability in the digital age entails reckoning with the transformative shift away from in-person purchases from brick-and-mortar stores toward digital purchases from e-commerce platforms. The epochal rise of the online storefront has vastly expanded the prevalence of direct-to-consumer sales, implicating a panoply of potential harms to consumers and raising the question of how liability rules should respond, especially in light of the development of international e-commerce and cross-border sales.

Consideration of liability for online platforms as “cheapest cost avoiders” reveals the mechanism by which courts’ decision to impose liability on new entities derives from the regulatory needs of society, and hence the desire to pin responsibility on entities in the best position to have readily avoided harm arising from the imposition of excessive risks. Products liability is a microcosm of how the common law evolves over times, specifically, here, to respond to new societal risks—posed by the automobile, mass-produced goods, and now, digital e-commerce. At each juncture in its development, judges relied explicitly on deterrence, prevention of harm, or CCA rationales to address new forms of risks and prevent them from materializing into harms, and in doing so, recognized new harms and/or expanded tort liability.

Podcast: COVID-19 and Cruise Ships

The National Sea Grant Law Center at the University of Mississippi School of Law hosts a podcast entitled "Law on the Half Shell."  Their second episode of the season covers COVID-19 and cruise ships and features Center Director Stephanie Otts and me.  I discuss COVID-19 tort cases against the cruise ship industry.

Citron on Section 230

Danielle Keats Citron has posted to SSRN How to Fix Section 230.  The abstract provides:

Section 230 is finally getting the clear-eyed attention that it deserves. No longer is it naive to suggest that we revisit the law that immunizes online platforms from liability for illegality that they enable. Today, the harm wrought by the current approach is undeniable. Time and practice have made clear that tech companies don't have enough incentive to remove harmful content, especially if it generates likes, clicks, and shares. They earn a fortune in advertising fees from illegality like nonconsensual pornography with little risk to their reputations. Victims can't sue the entities that have enabled and profited from their suffering. The question is how to fix Section 230. The legal shield enjoyed by online platforms needs preconditions. This essay proposes a reasonable steps approach borne out of more than 12 years working with tech companies on content moderation policies and victims of intimate privacy violations. In this essay, I lay out concrete suggestions for a reasonable steps approach, one that has synergies with international efforts.

Graham on Predicting the Future in Tort Law

Kyle Graham has posted to SSRN Predicting the Future in Tort Law.  The abstract provides:

Many predictions have been made, especially lately, about how tort law will interact with new technologies. But what can one actually foresee in this respect? This essay considers what lessons the emerging field of forecasting science might provide for predictions regarding tort law and innovations, and proposes some rules and best practices for these kinds of forecasts.

Sen. McConnell Ties Increased Stimulus Checks to the Repeal of Section 230

Sen. Mitch McConnell has introduced a bill combining $2,000 stimulus checks with the repeal of CDA Section 230.  The move is widely seen as a poison pill to scuttle the larger checks.  The Verge has coverage.

American Museum of Tort Law Moves Online

Due to the pandemic, the AMTL is going virtual.  Rick Newman is in the process of taking the museum online.  Although it is not finished, a preview is available here.  One of the features is interviews with scholars about particularly important tort cases.  The museum is currently editing those interviews, but two are already available on the museum's YouTube channel (Anita Bernstein on T.J. Hooper and Tony Sebok on Tarasoff).  This is an expensive endeavor; you can donate here.  The full list of cases and scholars is here:

Ken Abraham, Virginia:  Byrne v. Boadle

Anita Bernstein, Brooklyn:  T.J. Hooper

Jonathan Cardi, Wake Forest:  Galella v. Onassis

Mary Davis, Kentucky:  McCormack v. Hankscraft

Nora Engstrom, Stanford:  Carroll Towing

Mark Geistfeld, NYU:  Greenman v. Yuba

Don Gifford,  Maryland:  Borel

John Goldberg/Ben Zipursky (Harvard, Fordham):  MacPherson

Mike Green, Wake Forest:  Daubert 

Leslie Kendrick, Virginia:  Carol Burnett v. National Enquirer

Jill Lens, Arkansas:  Hoffman v.  Jones

Frank McClellan, Temple:  Canterbury v. Spence

Bob Rabin, Stanford:  Escola

Chris Robinette, Widener:  United Novelty v. Daniels

Mike Rustad, Suffolk:  Liebeck

Sheila Scheuerman, Suffolk:  Sioux City & Pacific Railroad Co. v. Stout

Tony Sebok, Cardozo:  Tarasoff 

Cathy Sharkey, NYU:  Wyeth v. Levine

Ken Simons, UC Irvine:  Grimshaw v. Ford Motors

Byron Stier,  Southwestern:  Cipollone

Ted White, Virginia:  Brown v. Kendall

Sharkey on Holding Amazon Liable As a Seller

Cathy Sharkey has posted to SSRN Holding Amazon Liable As a Seller of Defective Goods:  A Convergence of Cultural and Economic Perspectives.  The abstract provides:

Amazon’s e-commerce business, which offers a platform for third-party vendors, defies conventional categorization for products liability purposes. Professor Marshall Shapo’s conception of “tort law as a cultural mirror” sheds light on how products liability law has evolved so as to hold Amazon liable even as the seismic shift away from brick-and-mortar physical stores to the virtual marketplace has transformed the reasonable expectations of consumers. Holding Amazon liable is likewise supported by the economic perspective embodied in the “cheapest cost avoider” analysis; namely, that Amazon is best situated to take actions to minimize risks and prevent accidents from defective products. This convergence of cultural and economic perspectives and the emergence of a culturally specific norm of efficiency-as-responsibility in the context of the virtual marketplace, signals tort law’s ever moving march forward into the modern era.

Frye & Miers on Internet Trolls and Section 230

Brian Frye & Jess Miers have posted to SSRN Combating Internet Trolls:  The Right of Publicity and Section 230.  The abstract provides:

Section 230 protects internet trolls and websites from liability for defamation and other torts, but from liability for intellectual property infringement. This essay argues that some plaintiffs may be able to use the right of publicity to bring claims otherwise preempted by Section 230. Specifically, it reflects on whether Kenneth Zeran could have filed a successful right of publicity action.

Justice Thomas Signals His Support to Contract Section 230 Immunity

Yesterday Justice Thomas signaled he would like the Supreme Court to take up the issue of the immunity provided by Section 230 (of the Communications Decency Act of 1996).  That section exempts websites from civil liability for most of the content provided by third parties.  Many argue that the scope of the exemption has been expanded beyond the text of the statute by lower court decisions.  The Supreme Court declined to hear an appeal on Section 230 from a Ninth Circuit decision, and Justice Thomas used that occasion to remark that in an appropriate case the Court "should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms."  Multichannel News has the story.

Sloss on Section 230 and the Duty to Prevent Mass Atrocities

David Sloss has posted to SSRN Section 230 and the Duty to Prevent Mass Atrocities.  The abstract provides:

Between August and November, 2017, the Myanmar military carried out a series of brutal attacks against Rohingya Muslim communities in Rakhine State in Myanmar. Myanmar’s military used Facebook as a tool for ethnic cleansing. In theory, Rohingya plaintiffs could bring a state tort law claim against Facebook alleging that Facebook was negligent (or worse) in permitting its social media platform to be utilized to spark mass violence against the Rohingya. Could Facebook be held liable in a civil suit for complicity in genocide, or for aiding and abetting the commission of a crime against humanity? Under current federal law, the answer is clearly “no.” Section 230 of Title 47 of the U.S. Code states: “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.” Judicial decisions establish that Section 230 grants online service providers broad immunity for content posted by third parties. Thus, Section 230 provides Facebook a valid federal preemption defense to a state tort law claim.

This essay contends that Congress should create a statutory exception to Section 230 to permit civil suits against social media companies for complicity in genocide or crimes against humanity. The United States has a clear duty under international law to prevent genocide. One could also make a persuasive argument that the United States has a duty under customary international law to prevent crimes against humanity. The United States is not violating its international legal duty to prevent mass atrocities by granting immunity to internet companies. However, withdrawal of that immunity for content that contributes to commission of mass atrocity crimes would be a helpful step for the United States to implement its duty to prevent genocide and crimes against humanity.

IL: TikTok Sued for Intrusion Upon Seclusion

The app TikTok has been sued in the Northern District of Illinois for intrusion upon seclusion:

One of the specific allegations against the company’s application is that it collects user’s private draft videos that were never intended for publication…without consent. The videos according to the plaintiff class are then mined by Chinese engineers for biometric identifiers and information. The expectation of privacy in these instances may indeed meet the elements of the Intrusion Upon Seclusion cause of action. As previous case law notes, consent is a defense to Intrusion Upon Seclusion, but only as far as the consent given.

ClearanceJobs has the story.

Perry on the Law and Economics of Online Republication

Ronen Perry has posted to SSRN The Law and Economics of Online Republication.  The abstract provides:

Jerry publishes unlawful content about Newman on Facebook, Elaine shares Jerry’s post, the share automatically turns into a tweet because her Facebook and Twitter accounts are linked, and George immediately retweets it. Should Elaine and George be liable for these republications? The question is neither theoretical nor idiosyncratic. On occasion, it reaches the headlines, as when Jennifer Lawrence’s representatives announced she would sue every person involved in the dissemination, through various online platforms, of her illegally obtained nude pictures. Yet this is only the tip of the iceberg. Numerous potentially offensive items are reposted daily, their exposure expands in widening circles, and they sometimes “go viral.”

This Article is the first to provide a law and economics analysis of the question of liability for online republication. Its main thesis is that liability for republication generates a specter of multiple defendants which might dilute the originator’s liability and undermine its deterrent effect. The Article concludes that, subject to several exceptions and methodological caveats, only the originator should be liable. This seems to be the American rule, as enunciated in Batzel v. Smith and Barrett v. Rosenthal. It stands in stark contrast to the prevalent rules in other Western jurisdictions and has been challenged by scholars on various grounds since its very inception.

The Article unfolds in three Parts. Part I presents the legal framework. It first discusses the rules applicable to republication of self-created content, focusing on the emergence of the single publication rule and its natural extension to online republication. It then turns to republication of third-party content. American law makes a clear-cut distinction between offline republication which gives rise to a new cause of action against the republisher (subject to a few limited exceptions), and online republication which enjoys an almost absolute immunity under § 230 of the Communications Decency Act. Other Western jurisdictions employ more generous republisher liability regimes, which usually require endorsement, a knowing expansion of exposure or repetition.

Part II offers an economic justification for the American model. Law and economics literature has showed that attributing liability for constant indivisible harm to multiple injurers, where each could have single-handedly prevented that harm (“alternative care” settings), leads to dilution of liability. Online republication scenarios often involve multiple tortfeasors. However, they differ from previously analyzed phenomena because they are not alternative care situations, and because the harm—increased by the conduct of each tortfeasor—is not constant and indivisible. Part II argues that neither feature precludes the dilution argument. It explains that the impact of the multiplicity of injurers in the online republication context on liability and deterrence provides a general justification for the American rule. This rule’s relatively low administrative costs afford additional support.

Part III considers the possible limits of the theoretical argument. It maintains that exceptions to the exclusive originator liability rule should be recognized when the originator is unidentifiable or judgment-proof, and when either the republisher’s identity or the republication’s audience was unforeseeable. It also explains that the rule does not preclude liability for positive endorsement with a substantial addition, which constitutes a new original publication, or for the dissemination of illegally obtained content, which is an independent wrong. Lastly, Part III addresses possible challenges to the main argument’s underlying assumptions, namely that liability dilution is a real risk and that it is undesirable.

Selbst on AI and Negligence

Andrew Selbst has posted to SSRN Negligence and AI's Human Users.  The abstract provides:

Negligence law is often asked to adapt to new technologies. So it is with artificial intelligence (AI). But AI is different. Drawing on examples in medicine, financial advice, data security, and driving in semi-autonomous vehicles, this Article argues that AI poses serious challenges for negligence law. By inserting a layer of inscrutable, unintuitive, and statistically-derived code in between a human decisionmaker and the consequences of that decision, AI disrupts our typical understanding of responsibility for choices gone wrong. The Article argues that AI’s unique nature introduces four complications into negligence: 1) unforeseeability of specific errors that AI will make; 2) capacity limitations when humans interact with AI; 3) introducing AI-specific software vulnerabilities into decisions not previously mediated by software; and 4) distributional concerns based on AI’s statistical nature and potential for bias.

Tort scholars have mostly overlooked these challenges. This is understandable because they have been focused on autonomous robots, especially autonomous vehicles, which can easily kill, maim, or injure people. But this focus has neglected to consider the full range of what AI is. Outside of robots, AI technologies are not autonomous. Rather, they are primarily decision-assistance tools that aim to improve on the inefficiency, arbitrariness, and bias of human decisions. By focusing on a technology that eliminates users, tort scholars have concerned themselves with product liability and innovation, and as a result, have missed the implications for negligence law, the governing regime when harm comes from users of AI.

The Article also situates these observations in broader themes of negligence law: the relationship between bounded rationality and foreseeability, the need to update reasonableness conceptions based on new technology, and the difficulties of merging statistical facts with individual determinations, such as fault. This analysis suggests that though there might be a way to create systems of regulatory support to allow negligence law to operate as intended, an approach to oversight that it not based in individual fault is likely to be a more fruitful approach.

Pasquale on Data-Informed Duties in AI Development

Frank Pasquale has posted to SSRN Data-Informed Duties in AI Development.  The abstract provides:

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to industry to help it avoid preventable accidents. It will also assist a judiciary that is increasingly called upon to develop common law in response to legal disputes arising out of the deployment of AI.

3d Cir: Amazon Is a Seller of Goods Through Website, Even if Owned by 3rd Parties; CDA Not Applicable Except as to Failure to Warn

In Oberdorf v. Amazon.com, Inc., the Third Circuit held that Amazon was a "seller" for purposes of Pennsylvania state law when it sold items on its website through Amazon Marketplace.  Amazon Marketplace connects buyers to third-party sellers on Amazon's website.  Amazon does not own the goods and in many cases does not deliver them.  After determining Amazon to be a seller, the court further held that section 230 of the Communications Decency Act of 1996 only shields Amazon from failure to warn claims.  Section 230 states:  "[n]o 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."  The Third Circuit panel unanimously held that this provision would immunize Amazon from failure to warn claims because the warnings or lack thereof were provided by a third party.  No immunity would be available, however, for non-speech-related claims such as manufacturing or design defects. 

The holding that Amazon is a seller is unusual, perhaps even novel.  A recent Fourth Circuit case, based on Maryland law, came to the opposite conclusion.  In the "flaming headlamp" case, reported on here, the Fourth Circuit affirmed the district court's finding that Amazon was not a seller under nearly identical circumstances.  In a recent related case, Herrick v. Grindr, reported on here, the Second Circuit concluded that section 230 of the CDA did protect Grindr from claims brought when an angry ex-boyfriend allegedly created fake profiles that induced numerous men to come to plaintiff's home and work demanding sex.

Andrew Keshner of MarketWatch has a piece on the Third Circuit case, with a focus on the CDA holding here.

Cortez on Technology and Patient Safety

Nathan Cortez has posted to SSRN A Black Box for Patient Safety?.  The abstract provides:

Technology now makes it possible to record surgical procedures with striking granularity. And new methods of artificial intelligence (A.I.) and machine learning allow data from surgeries to be used to identify and predict errors. These technologies are now being deployed, on a research basis, in hospitals around the world, including in U.S. hospitals. This Article evaluates whether such recordings – and whether subsequent software analyses of such recordings – are discoverable and admissible in U.S. courts in medical malpractice actions. I then argue for reformulating traditional "information policy" to accommodate the use of these new technologies without losing sight of patient safety concerns and patient legal rights.

UVa Podcast: Abraham & Raschid on Autonomous Vehicles and Liability

UVa Law has a podcast, "Common Law," which is co-hosted by tortsprof Leslie Kendrick (she is Vice Dean).  The most recent version features Ken Abraham and alum Michael Raschid, chief legal officer and vice president of operations at Perrone Robotics, discussing the effect of autonomous vehicles on tort and insurance.

Are Apps Products?

Couple breaks up.  Upset former lover creates fake profiles on a dating app that leads to harassment of ex, including over a dozen instances of people showing up at the person's home and workplace ready for sex.  The victim files police reports and eventually obtains a restraining order against the company that created the dating app.  The victim sues the company alleging, among other things, products liability.  The trial court dismisses the action based on section 230 of the Telecommunications Decency Act of 1996, protecting those providing interactive computer services from the statements of third parties.  Today the Second Circuit hears an appeal of that case, Herrick v. Grindr.  In the meantime, Dave Ingram of NBC has an interesting piece on the issue of whether apps qualify as products for purposes of products liability.

Chesney & Citron on "Deep Fake" Technology

Robert Chesney & Danielle Keats Citron have posted to SSRN Deep Fakes:  A Looming Challenge for Privacy, Democracy, and National Security.  The abstract provides:

Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors.

While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace of ideas already suffers from truth decay as our networked information environment interacts in toxic ways with our cognitive biases. Deep fakes will exacerbate this problem significantly. Individuals and businesses will face novel forms of exploitation, intimidation, and personal sabotage. The risks to our democracy and to national security are profound as well.

Our aim is to provide the first in-depth assessment of the causes and consequences of this disruptive technological change, and to explore the existing and potential tools for responding to it. We survey a broad array of responses, including: the role of technological solutions; criminal penalties, civil liability, and regulatory action; military and covert-action responses; economic sanctions; and market developments. We cover the waterfront from immunities to immutable authentication trails, offering recommendations to improve law and policy and anticipating the pitfalls embedded in various solutions.

Abraham & Rabin on Automated Vehicles

Ken Abraham & Bob Rabin have posted to SSRN Automated Vehicles and Manufacturer Responsibility for Accidents:  A New Legal Regime for a New Era.  The abstract provides:

The United States is on the verge of a new era in transportation, requiring a new legal regime. Over the coming decades, there will be a revolution in driving, as manually-driven cars are replaced by automated vehicles. There will then be a radically new world of auto accidents: most accidents will be caused by cars, not by drivers. Thus far, however, proposals for reform have failed to address with precision the distinctive issues that will be posed during the long transitional period in which automated vehicles share the roadway with conventional vehicles, or during the succeeding period that will be dominated by accidents between automated vehicles. A legal regime for this new era should more effectively and sensibly promote safety and provide compensation than the existing tort doctrines governing driver liability for negligence and manufacturer liability for product defects will be able to do. In a world of accidents dominated by automated vehicles, these doctrines will be anachronistic and obsolete. We present a proposal for a more effective system, adopting strict manufacturer responsibility for auto accidents. We call this system Manufacturer Enterprise Responsibility, or “MER.” In describing and developing our proposal for MER, we present the first detailed, extensively analyzed approach that would promote deterrence and compensation more effectively than continued reliance on tort in the coming world of accidents involving automated vehicles.