‘YouTube should be vicariously liable for the intentional torts of its prankster vloggers.’ Critically discuss this statement by reference to the law vicarious liability in England and Wales.
Tort law is established to remedy the relationship between the tort fissure and the victim. This is established on the grounds of negligence, moral blame worthiness, causation and injury. With the rise of the technological revolution in an increasingly interconnected global community, tort law encounters uncertainty related how it will hold social media platforms vicariously liable for what is a virtual world of billions of users. Vicarious liability is where someone is held accountable for the actions or omissions of another person. In England and Wales, there is a two-step system that is used in order to determine if someone is vicariously liable. It considers the relationship between the primary wrongdoer and the person alleged to be liable, and whether the relationship is capable of vicarious liability. Second, whether there is a sufficiently close connection between the wrongdoing and the employment, so that it will be fair and just to hold the employer vicariously liable. In order for a company to be vicariously liable, there are a set of supervision policies that need to be fulfilled. With more than one billion users that use YouTube daily, it can be said that there is no claim for regular supervision. The only way a service platform would be vicariously liable is if employees directly working at YouTube put out negative content that renders people feeling emotionally or psychologically hurt. YouTube is an American video-sharing website that has about 1.3 billion subscribers worldwide. Of these subscribers, there are more than one thousand partners including major United States network broadcasters, movie studios and record labels. There are a number of channels that receive more than six-figures earnings annually and YouTube itself makes around 6.3 billion dollars a year. Users however; using the platform of YouTube are not directly being supervised by YouTube. YouTube does have a duty of care to the individuals that are using the platform at large but, not specific individual users. The company does not have supervision on all of its subscribers. YouTube can have a duty of care to those individuals that attempt to have equitable content, but the company would not owe a duty of care directly to the individual running the account. Duty of care is a legal obligation which is set on individuals requiring a standard amount of care while performing any acts live or uploading online that could potentially harm others. This essay will analyse duty of care implications related to foreseeability, relational proximity with an emphasis on policy considerations to limit the scope of indeterminacy. Moreover, this essay will extent to vicarious liability related to the failure to regulate when it is foreseeable that a user will, based on previous conduct, inflict injury on others.
It can be said that if any prankster vlogger posts a video on his/her platform, YouTube cannot foresee the liability that it could cause in advance and how the audience will be affected. The foreseeability factor is essential to vicarious liability. There has to be some type of harm involved whether its emotional or psychological in order for an individual to claim against the service provider YouTube. Foreseeability determines proximate cause and if the harm resulting from an action could have been predicted. For example, if the act is between a defendant and a claimant as seen in Nettleship v Weston, it is foreseeable that the passenger along with other road users are affected by the defendant. In this case, YouTube has certain policies that if an individual decides to sue YouTube for vicarious liability because of a prank video that he/she has watched, the company is not held liable. Even if a vlogger uploads a video that is disturbing to the audience which results into an intentional tort, YouTube is not vicariously liable. The case would be between the prankster vlogger and the claimant. As also reflected in Bolton v Stone, YouTube should guard against what is reasonably foreseeable, not probable possibilities.
Initially, the duty of care will be established based on foreseeability based on relational proximity due to supervening policy considerations. The exception to this rule is that if there is a vlogger that YouTube could foresee, the company can be held liable for failure to regulate. Foreseeability then becomes known because the company would then know that this specific individual will commit some type of intentional tort. This would also be against public policy in general for YouTube to not ban prankster vloggers to use their platform. This is also reflected in other social media platforms such as Facebook and Twitter where if there is any type of hate speech, defamation, emotionally and psychological distress, the company will grant themselves the right to eliminate the account involved. The only time YouTube would be held liable if an account of a user is flagged and the company takes no action then, YouTube will be held liable. Since, it would be active and running, the prankster vlogger can upload additional videos that could potentially harm the engaged audience. If YouTube fails to prevent the prankster vlogger from continuing their malicious behaviour that is potentially affecting the audience then, YouTube would be held viciously liable. But, until this would occur, YouTube cannot be held liable until some type of negative behaviour is not shown.
In order to establish vicarious liability, there must be some type of duty of care involved. If Donoghue v Stevenson was looked at, tort law established that manufacturers or business owners owe a duty of care to the final consumer, what is known as the legal neighbour principle. However, the neighbour principle is not a principle that provides just a duty of care to the entire world. The neighbour principle is essential of the English Law which states, that a person should take reasonable care to avoid acts or omissions that he/she can reasonable foresee. By taking the neighbour principle into account, the prankster vloggers should be aware of the audience that is viewing the videos on YouTube. YouTube vloggers need to be more cautious of what he/she are posting as the audience could be potentially harmed. This principle then opens the floodgates to individuals that can prove a duty of care is required from YouTube or the prankster vloggers themselves. Under the terms and services, YouTube would not be held liable for intentional torts of its prankster vloggers. Under section 10 of Terms of Service policy, in no event shall YouTube, its officers, directors, employees, or agents, be liable to you for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever resulting from any (I) errors, mistakes, or inaccuracies of content, (II) personal injury or property damage, of any nature whatsoever. This saves the service provider from any liability and shall apply the law towards the vlogger themselves. The question then becomes, does YouTube have a relational proximity that is sufficiently close and proximate just in reasonable to permit liability. YouTube does have a relational connection to the user and the end user by providing a platform where individuals can post videos. YouTube keeps their data collection, often times personal information about individuals, the videos and the content that is uploaded by the user. When an individual is not signed into his/her YouTube account, the company collects all the information regarding history as well. The company usually keeps this information because of copyright infringement, later a problem itself. YouTube does have a fair use policy which is a legal doctrine which states that an individual can use copyright-protected material under certain circumstances. The company cannot be held liable for intentional torts as the ‘vloggers’ are choosing to make these types of prank videos where it is their choice to post such acts on the platform provided. These types of videos swallow up the decency of everything in reach, it can be said that these types of videos are unqualified nonsense. YouTube on the other hand cannot foresee what will happen and how the audience is affected by the prank videos uploaded.
Although, YouTube has the right to remove the video/account, it is the vloggers responsibility to know what is appropriate to upload. Most prank videos are staged, where by real actors are present and technically only selling the idea to its users that society is being caught ‘off-guard’. A relationship that is close and proximate that will permit recovery. YouTube has this individual in contemplation, the relationship between people and their platform, the relationship between YouTube and the person that gets hurt. Prima Facie duty of care can be established as proximity, policy, and foreseeability are fulfilled. YouTube then does owe a duty of care to the end user and someone for example that could be subject to bullying therefore, making the service provider vicariously liable. YouTube could owe compensation for personal injuries whether its emotional or psychological. Under the Caparo test, the individual attempting to ‘sue’ YouTube for damages causes by prankster vloggers, three steps must be established. These are: that harm was reasonably foreseeable, that there was a relationship of proximity, and that it is fair, and reasonable to impose a duty of care. The Caparo test is quite similar to the Neighbour test but the Caparo test allows the claimant to put forward policy reasons for liability. If the individual can prove in the court of law that what he/she has watched has affected them negatively and YouTube had taken no action towards it, YouTube could be liable. Since the terms of service protect the service provider, YouTube would not be vicariously liable for intentional torts as again it’s the platform that is begin used. The individual that is the owner of the prank channel shall be vicariously liable towards the claimant. This limits the individuals that attempt to sue YouTube for damages or emotional distress.
The core of the Ann’s test and its purpose is to limit indeterminacy, this test is used to determine a duty of care in the tort of negligence. However, at the second stage of the Ann’s test, there are policy considerations. These considerations establish the impact of a new category of duty of care, social media or other online platforms. If YouTube were to be held liable for individuals on their platform who for example individuals who watch prank videos and are affected, it would lead to an innumerable amount of class of persons. It would also lead to an innumerable amount of money, and innumerable amount of cases that would flood the court systems. It is not possible for YouTube to be vicariously liable for the prankster vloggers as the service provider has no legal obligation towards the content that is uploaded by individuals with accounts. There is a provision in federal law called The Communications Decency Act. This acts basically says that no provider of an internet service or a platform like YouTube can be treated as a publisher of information that is provided by 3rd parties. This provides the company with some legal stand point as YouTube has no legal obligation to review content that is published on its platform. Although, it can be said that YouTube has no legal obligation towards content that is published, the company should have communication with the vlogger in question. If he/she has published a video that is disturbing to society and YouTube makes a promise to take the video down but does not live up to the expectation of society. There would be a breach of promise where the individual affected would be able to sue YouTube for vicariously liability as the company did not live up to their promise. But, a breach of promise would not be protected under the Communications Decency Act as it is different from liability over breaking a promise made to the subscriber.
There are a set of legal policies that YouTube follows, for when individuals sign up for a Google account, a terms and conditions is signed that clears the company from any future lawsuits. YouTube has a limitation of liability where the company is not held liable for any damages or personal injuries caused. It is not possible for YouTube to put a certain ban on prankster vloggers recording pranks within societies. As seen on social blade, there are numerous individuals that have an active prank-based account where there are more than one million videos viewed. It is not possible for YouTube to put a certain ban on individuals recording pranks. Since, a portion of YouTube is based on pranks and vlogging, the company would shut down if each individual would sue for vicariously liability. YouTube understands that acts committed on an individual, cyberbullying, YouTube then does have the duty to regulate. If YouTube is diligent, is aware and the company has served notice, then YouTube should act upon that information. If the company will fail to do so, then it can be said YouTube is vicariously liable for any intentional torts caused by prankster vloggers. It is not possible to hold a service provider liable for something that is unforeseen, that there could be a relationship, but at the end would cause indeterminacy. Only, again if YouTube has a flagged user, this user continues to upload videos that is potentially harmful to subscribers, YouTube does not do anything about it, only then YouTube would be held liable. But, until this we cannot hold the service provider YouTube vicariously liable until some type of negativity is not shown from the prankster vlogger.
In conclusion, YouTube would not be held vicariously liable for the intentional torts of its prankster vloggers. There are over a million views per day on videos relating to pranks where these vloggers are being paid high amounts per month to post videos. Under the principle of vicarious liability, am employer will be held liable for the tort of his or her employee, provided that tort is sufficiently connected with the individuals employment. In this case YouTube is a platform that provides vloggers a place to upload videos. The service provider would not be liable for intentional torts as the vloggers are separate entities. To the certain extent, if society feels psychologically harmed because of the content that had been uploaded, then YouTube would be liable to step in. YouTube does have a three-strike system where on the third final strike, the service provider will remove the account in question. This is one of many ways YouTube regulates the vloggers who are possibly committing intentional torts. Depending on the prankster vlogger, YouTube does not owe a duty of care towards the individual in question. There is also no supervision by the service provider on the vlogger that had been committing intentional torts. The only way YouTube could potentially be vicariously liable is if society streaming these prank videos is in emotional distress. These individuals would be able to come after the company as well as the vlogger in question as it is the service providers duty to regulate and terminate any content that is harmful. All in all, YouTube as a service provider is protected from any type of legal stand point. The prankster vloggers and the audience itself will be in question as YouTube the service provider is providing a platform for the vloggers to upload their content on.
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 Jenny Steele, Tort Law: Text, Cases, and Materials (Oxford University Press 2017)
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