Suing a YouTuber 101

The other day I saw a YouTube video which demonstrated that I could charge my phone if I put it in the microwave, and of course, I had to try it. So I did what anyone would do, I put my phone in the microwave, set it on high (because I wanted it to charge fast) and left it for an entire minute. To my amazement when I got back, not only was my kitchen burnt to the ground, but I also need to buy a new phone. Okay, that did not happen, but there were still some “brave souls” who actually got injured following the release of that video. While this example may be a bit extreme, would it not be possible for YouTubers who post How-To videos, makeup tutorials or even funny videos like the microwave charger to owe some sort of responsibility to the viewer, especially if one were to get injured following what they said or did.

WHO TO SUE?

If you purchase a product that a YouTuber promoted, and happen to have an allergic reaction that caused you to spend a lot on dermatology and medical expenses, or if you were permanently scarred, then it would make sense that you should sue the producer of the product as opposed to promoter. On the other hand, if the YouTuber advises you on how to “best” use a product (especially if it isn’t the intended use of the product) and you get injured, could you sue the YouTuber, or even better, could you sue YouTube? Now, suing YouTube may prove to be pretty difficult because of their terms and conditions for using their platform, that no one actually ever reads. Luckily for you, I’ve read them and shall distill them for your information. A large corporation like Google (owner of YouTube) would obviously do all it can to limit their liabilities and potential of being sued. Their terms and conditions clearly state that any content uploaded is not the property of YouTube (although they reserve distribution rights) and that any inaccuracies accruing for the uploaded video are the responsibility of the YouTuber, going as far to exclude liability for ANY personal injury resulting from their content. In short, you could try to sue a company worth billions, or you could just go after the content creator / uploader (they make a lot of money too, so you should be covered).

The most likely successful action you could initiate against a YouTuber would be a claim for the Tort of Negligence. There are several elements that need to be established to successfully claim for Negligence; a duty of care needs to be owed by the YouTuber to the viewer, there must be a breach of that duty, that breach must have caused the loss suffered (such as injury or property damage) and the losses suffered cannot be too far fetched or remote.

NOW WHAT? 

Does a YouTuber actually owe a duty to the millions of people watching their content? Even if they do, to what extent do they owe this responsibility? To answer that, we (sadly) have no choice but to look at case law. The landmark case of Donoghue v Stevenson and the later case of Caparo Industries plc v Dickman (ha ha, DIckman). To summarise, the principle laid down in the case; “the Neighbour Principle” (probably the most iconic principle probably ever laid down in a judgement) that states that people must take reasonable care not to cause any injury to others who could foreseeably be affected by their actions or in-actions. The latter case extended the principle and developed a three-stage test to establish a duty of care. The requirements are; firstly the damage suffered must be foreseeable, secondly that the relationship of the parties must be related or of a neighbourhood (not too distant) and lastly if the court considers it would be fair, just and reasonable to impose a duty of care.

Simply put, a YouTuber should be aware that any of their viewers may follow their advice or actions, which may result in the viewer getting injured doing so. A viewer and YouTuber relationship is not too distant, as videos are literally put on YouTube to be watched (who would post stuff online intending it not to be seen?), and it is perfectly reasonable (at least to me) that a duty of care should be imposed.

Although a duty of care is owed between a YouTuber and a viewer, would a YouTuber have failed to do what the reasonable person, or in this case a “reasonable YouTuber” would have done in their situation? Failing to reach this standard, it would be then that the YouTuber would have breached their duty of care. Although there are many factors, the question boils down to “what is the fault of the YouTuber that you got injured, or was it due to to the viewer’s own carelessness?” It is often seen during movies that have explosions and stunts, a little message saying “do not try this at home” or “everything you see is done professionally and in no means should be followed by the viewer” or something to that effect. These disclaimers are there because if someone is reckless enough to follow what they see, the content creators exclude their liability by already forewarning the viewer. They take the precaution to inform the viewers because the risk of some individual following what they see, and getting harmed in the process is entirely foreseeable. Why should the standard be any different for a YouTuber? In fact, many of them have already started incorporating disclaimers in or at the beginning of their videos, seeming to suggest that a recognisable duty is owed. 

This does not only apply to cases of personal injury! For example, if you follow a gardening video that tells you for example to put an entire kilogram of fertiliser on a single plant (I am not kidding, I saw this the other day!) and as a result that plant dies, that is property damage as a result of their bad advice. A certain standard is imposed on the content creator, because they are advising you in their video. It is not unforeseeable that people may rely on their advice, and if they suffer losses in the process that should be the responsibility of the person who gave the advice. The final two elements lie in proving that the content in the video caused the injury as it was followed, and that the damages were not too unforeseeable. This is a no - brainer for claims of physical injury or property damage; the viewer would have not gotten injured but for the actions or advice given in the video, and that injury was foreseeable. 

THE REALITY

Although a clear Duty of Care is owed, this should be taken with a pinch of salt. Just because a duty is owed, it does not mean that the YouTuber would be liable for any injury or property damage that resulted from you watching their video. There are often times when the video is clearly meant to be satirical, and if that satire is not understood by the viewer (and it objectively to others), then it may not be the fault of the content creator. Another example could be when you watch a cooking video and you imitate it at home. If you get food poisoning or have an allergic reaction to an ingredient in that recipe, you cannot blame the YouTuber for not warning you about that ingredient. There is still a responsibility the viewer must take to not get hurt or suffer any injury or property damage in the process of following the video. The YouTuber cannot control how you will implement what you watched, so it may be difficult to hold them liable for such a matter.

It cannot be seen as a one way street, there is arguably a shared responsibility. While a YouTuber owes a duty, the extent of that duty is not all encompassing, and even though the viewers should have a right to sue the YouTuber for his negligence it does not mean that the sword can be brandished at every whim and fancy. While it is encouraged that the viewer should always take precaution when imitating what they see in any video, it does not mean that the content creator has the right to upload whatever they feel without repercussion should someone suffer harm.