You buy a can of fizzy ginger ale. Inside is a small, decomposed snail. You get sick and claim damages (successfully: making new law in the process – the modern law of negligence and the "neighbor test"). This is the abbreviated version of the English case Donoghue v Stevenson [1932] AC 562. Fast-forward to 1985 and it becomes easier to claim damages for a defective product: a strict liability regime is introduced into EU law by the Product Liability Directive (Council Directive 85/374/EEC of 25 July 1985). This same law, as implemented by the member states of the EU, still applies today (including in the UK).
How about this scenario:
A virus causing illness is sweeping across countries' borders. There is no known cure. Newspapers, bloggers and other online and print sources start to speculate about potential remedies – and some of those potential remedies described cause personal injury. Can damages be claimed?
Similarities between rotten snails and fake news?
Is the above scenario similar to "the ginger ale case"? Perhaps Donoghue v Stevenson established that a duty of care is owed to one's neighbor – in the context of liability for fake news (printed or online), could it be said that the principle applies to the readers of media if – for example – an untrue virus "remedy" causes personal injury? Let's keep in mind the following extract from the judgement of Lord Atkin:
"The rule that you are to love your neighbor becomes in law you must not injure your neighbor; and the lawyer's question " Who is my neighbor?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who then in law is my neighbor ? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
There are laws which apply to the spreading of malicious content and we have laws controlling the press. An interesting question remains: could Donoghue v Stevenson be applied?
A more straightforward approach: a role for product liability law?
Putting aside issues that may arise in negligence and elsewhere: could the principles of the Product Liability Directive apply to "fake news" where an alleged remedy has caused harm?
It's an interesting question. In principle, a physical product such as a newspaper or book is purchased for its content (rather than physical properties): that content should do what it says it will do. Following this argument, if the content is "faulty" and causes personal injury... it certainly seems at first blush arguable that the strict liability regime introduced by the Product Liability Directive could apply. On the other hand... this doesn't sit comfortably. For one thing, given the current review of the Product Liability Directive and the generally accepted view that it applies to physical products – we would have created a different outcome with regards to printed digital products vs online media. It also would lead to the result generally that "defective information" has come within the scope of a liability regime initially intended to deal with something much more like "the ginger ale case". Certainly, any application of the Product Liability Directive to "fake news" would get ahead of the consultation happening at an EU wide level with regards to the application of the directive to emerging technologies and consideration of whether the current law remains fit for purpose.
As for the "fake cures" – in terms of products or goods that are falsely marketed or described as effective treatments for coronavirus – we've already seen rogue sellers seek to make a profit in these uncertain times. For so-called benign "fake cures" such as vitamin C boosters (leaving aside any falsely marketed products with potentially actively harmful ingredients), there's a risk that consumers rely on them and fail to take other appropriate steps. We may see potential product litigation in relation to products which have been marketed as preventing COVID-19 (think falsely advertised air-purifiers and rogue face masks). Online retailers are taking this seriously: but it's difficult to identify and ban every rogue product, or to catch every false claim. Especially when trading platforms and online market places are themselves under pressure with employees being out of the business, and needing to rely more heavily than otherwise intended on algorithms.
COVID-19: will we see product liability litigation?
In brief: yes. Certainly, we could see potential cases relating to newly developed vaccines and perhaps also to the use of equipment in circumstances where it was not intended (but has, due to dire circumstances, become necessary). Twitter, Facebook and other platforms are working hard to remove damaging news relating to COVID-19: but still, there is plenty of "fakenews" and alleged home cures available.
Understandably, businesses are appropriately focused on getting their people – and then their business – safely through the current crisis. We expect to see litigation ahead in the products field: we will keep you updated. For help navigating litigation risks in the products space you can reach out to our global team of leading products litigators.
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