Abstract

This Article is concerned with the potential liability of those who disseminate false or inaccurate information that causes physical injury or property damage to those who rely upon it. However, this Article will not address the question of whether those who advocate or depict violence or other antisocial activities should also be subject to liability. For the most part, such publications are considered to be a form of constitutionally protected speech, even when they directly cause physical harm to others. Although the issue of liability for the publication of factually inaccurate information is narrower in scope than liability for the publication of bad ideas, a surprising amount of variation exists regarding how courts treat those who publish such information. Liability may be based on whether the information relates to the sale of a product, whether it is embodied in a product, or whether it is disseminated electronically or in some kind of tangible form. This Article will try to determine whether any of these distinctions are relevant to the type of liability applicable to those who publish inaccurate information.

The Article begins by examining the existing state of the law in this area. Part II focuses on liability for information associated with the marketing or sale of a product. In such cases, liability for product sellers may arise from product descriptions in advertising or express warranties, as well as mistakes in instructions and warnings. Potential liability theories include negligence, misrepresentation, breach of warranty, and strict liability in tort. Part III examines liability for inaccurate information published in books, magazines, and other tangible media. Although plaintiffs have invoked a variety of theories, such as negligence and strict liability in tort, courts have generally refused to impose liability either on doctrinal grounds or because of concerns about the chilling effect of tort liability on the free exchange of ideas.

Part IV ventures into the largely unexplored area of liability for information embodied in computer programs and the more conventional forms of information disseminated over the Internet. Because there are no reported cases on the subject, it is difficult to predict what sort of liability rule would apply to those who sell computer programs. In theory, stand-alone computer programs could be considered goods and, therefore, subject to sales warranties under the Uniform Commercial Code (UCC); however, it is less certain that courts will also treat them as products for purposes of applying strict principles. On the other hand, consumers may be able to recover against product sellers when defective computer programs embedded in a product cause it to malfunction. In addition, Part IV considers which liability rules currently apply to inaccurate information that is made available to the public over the Internet. What little case law there is suggests that courts will impose liability of some sort when the information provider is trying to sell a product, but not otherwise.

Finally, Part V considers a bifurcated liability standard that distinguishes between commercial and noncommercial information. Part V also concludes that a negligence standard is appropriate for those who disseminate information of a commercial nature. However, publishers of noncommercial information should be subject to tort liability only if they breach an express warranty or engage in fraudulent misrepresentation.

Document Type

Article

Publication Date

Fall 2013

Notes/Citation Information

South Carolina Law Review, Vol. 65, No. 1 (Autumn 2013), pp. 131-211

Included in

Torts Commons

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