Yesterday, President Biden was asked about the role of social media platforms in the reemergence of COVID-19. “They’re killing people,” he responded. And, unfortunately, the discussion in some parts of the media began to focus on the role of Facebook and other platforms in spreading misinformation. See, for example, https://www.nytimes.com/2021/07/16/opinion/biden-facebook-covid-vaccine.html

There is absolutely no doubt that those individuals who purposefully spread misinformation about the safety and efficacy of COVID-19 vaccines are indeed killing people. Imagine, for a moment, the following scene:

A sociopath posts a sign at a pedestrian crosswalk where signals have been installed to stop traffic. Knowing full well that the signals were installed to protect pedestrians, the sociopath nevertheless words the sign as follows: “No need to press the button. It was put there by the government, and you know you can’t trust those people! So, you should ignore the signal altogether and just run across the street.”  

One day a group of visiting tourists walks up and reads the sign and decides to take the sociopath’s advice. A horrible accident then results in which one of the tourists is killed. In the lawsuit that follows, a lawyer for the tourists tries to blame the sociopath for his faulty advice. Of course, the sociopath responds as follows: “This is America. I have a right to my opinion. My sign never claimed I was a traffic expert. It was stupid of them to follow my advice.”

And, unfortunately, we can assume the court would agree that the preponderance of the blame would probably rest on the tourists for following the advice of a random stranger.

Now, let’s suppose a legislator comes along and wants to propose a law that would prevent the sociopath from engaging in that type of conduct in the future. However, instead of proposing a law that would make a person liable for knowingly giving false safety advice to unsuspecting tourists (i. e., a law aimed precisely at the wrong behavior), the legislator proposes a law that would ban sign makers from printing signs offering dangerous advice. We’d all agree, I think that by focusing on sign makers (rather than sociopaths) the legislator is missing the mark, though we’d all agree that if someone brings the accident to the sign maker’s attention and the sign maker keeps printing identical signs, then the sign maker should share in the blame.

Such, unfortunately, may be the case with those who wish to hold Facebook, Twitter, and other social media platforms liable for the sins of those who use those platforms to spread misinformation before the nature of the misinformation is made available to the social media platform. Wouldn’t it be a better approach to change the law in such a way that people who are harmed because of their reliance on social media posts that purport to offer erroneous “facts” would first sue those posting the facts via a convenient tribunal made available by the platform? And then, if the sociopath turned out to be anonymous or hiding out in some foreign country, couldn’t our law provide for notice to be given directly to the social media platform when evidence of damage from the erroneous post could be documented via some convenient format. Then, if the social media platform were to allow the misinformation to continue, the platform could then be held jointly liable, along with the sociopath, for any wrongs (e. g. negligence, libel, etc.) caused to an innocent reader.