Social media influencers are the new infomercials. They promote products, lifestyles and even medical advice to millions of followers. What happens when what’s being sold is an idea that can affect someone’s health?
This question sits at the center of a publication from DePaul College of Law Professor Max Helveston and his co-authors, Leah R. Fowler of the University of Houston and Zoe Robinson of Marquette University. As online health content continues to blur the line between personal storytelling, promotion and professional guidance, these scholars write that the legal system has struggled to keep up. Published in the Georgetown Law Journal, their paper examines whether existing negligence laws could be used to hold health influencers accountable when misinformation causes real-world harm.
“This is definitely not a cure at all,” Helveston says. “It would at least put some fear into the market so it would curb the most outrageous conduct.”
In this Q&A, Helveston explains why current legal remedies fall short, how liability could work in practice and whether the First Amendment could protect influencers.
How does the law hold health influencers accountable?
There is a lack of legal repercussions for individuals that make money promoting either bad health products or providing people with medical disinformation.
In our new era of influencers, people can make a lot of money just by having a lot of followers. Their compensation isn’t based on the accuracy of their information. We’ve seen some popular individuals promulgate very bad health information that travels broadly and has ended up injuring a bunch of individuals.
Right now, due to the federal Communication Decency Act, people harmed by this bad advice cannot sue the platform. Suing the influencers themselves is difficult because our current consumer protection laws are focused on companies that sell a good or service.
In our paper, we suggest that we do not need to pass a new law. People could sue influencers for negligence. We have seen a couple suits, but the law just has not really had to deal with it yet.
There are already rules around advertising. Why should influencing be treated differently under the law?
If we think back 50 years, it was always very clear what an advertisement was and what it was not. The world of influencers takes it to the next step, where a person is blending content, personal content, entertainment and ads, sometimes within the same reel. That makes it incredibly difficult for consumers to differentiate between an advertisement and just content they are enjoying. Our old-school approaches to regulating advertising, which focus on disclosure, are not going to be effective in that environment.
One of the primary things we point to in the paper is parasocial relationships. People do not view influencers as just a star. They view them as a friend, and that is exactly why influencers get paid a ton of money now. They are more effective advertisers than a print ad or even a celebrity endorsement because they are so persuasive.
What does it mean for an influencer to be held liable for negligence and how difficult is that to prove?
If they were held liable in negligence, an influencer would have to pay compensatory damages, such as medical bills. It is also possible for punitive or exemplary damages, where a jury or a judge sanctions them more to send a message that their conduct was very wrongful and should not be repeated.
However, showing causation would be the biggest challenge. An injured individual would have to prove that if the influencer did not do X action, the individual would not have done the thing that hurt them.
For example, if someone dies from injecting bleach, and their history shows they watched 10 videos from one person who said to do that and that is the only place they got that advice – there is a pretty clear causation.
Other times it is not going to be provable because they were exposed to a lot of different people saying similar things.
What about First Amendment protections for free speech?
Law scholars radically disagree on interpretations of free speech. I think holding influencers liable for spreading misinformation would be constitutional because what they do could be considered commercial speech. Commercial speech is not as protected under the First Amendment.
The Supreme Court has almost never considered whether the First Amendment applies to negligence that causes physical harm, so to an extent it is speculative. Given our current Court, I would not be surprised if they said either result.
On April 17, Helveston will join other scholars in presenting at the 35th Annual DePaul Law Review Symposium, titled, “E-merging Trends: Keeping up with the changing legal landscape.”