This Article is concerned with the potential liability of those who disseminate false or inaccurate information which causes physical injury or property damage to those who rely upon it. It 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 that that of liability for the publication of “bad” ideas, there is a surprising amount of variation in 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 is relevant to the type of liability rule that is applicable to those who publish inaccurate information.
The Article begins by examining the existing state of the law in this area. Part I 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 II 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, in general, courts have 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 III ventures into the largely unexplored area of liability for “information” that is embodied in computer programs as well as the more conventional forms of information that are disseminated over the internet. Because there are no reported cases on the subject, it is difficult to predict what sort of liability rule would be applied to those who sell computer programs. In theory, stand-alone computer programs could be considered to be “goods” and, therefore, subject to U.C.C. sales warranties; 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. Part III also considers what 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 IV considers a bifurcated liability standard that distinguishes between information that is “commercial” in nature and information that is noncommercial. Part IV 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.
