FEUDING WITH FAUCI: TOWARDS A TORT OF RECKLESS DISSEMINATION OF MEDICAL MISINFORMATION.

• Author: Patterson, Flint

INTRODUCTION 265 I THE FACTUAL CONTEXT: INFODEMICS ARE AN ENDURING PUBLIC HEALTH ISSUE 267 II THE INTERESTS AT PLAY: BODILY INTEGRITY VERSUS MEDICAL AUTONOMY 271 A. The Right to Medical Autonomy 271 B. The Right to Investigate One's Options 272 C. The Public Interest in the Contestability of Science 273 III CURRENT APPROACHES: PLATFORM LIABILITY AND THE STATUS QUO 277 A. Platform Liability: Inaccurate Censorship Impairs Medical Dialogue 278 B. The Status Quo: Too Narrow in Scope and Too Harsh in Criteria 280 C. Problems with the Existing Landscape: Reasonableness and Policy-Based Immunity 284 IV A BETTER WAY: RECKLESS DISSEMINATION 288 A. Grounds for Changing the Common Law 288 B. The Proposed Change 290 C. Reckless Dissemination in Operation 297 D. The Appropriateness of the Change 301 V CONCLUSION 306 INTRODUCTION

The COVID-19 pandemic has brought about a misinformation crisis which many public health experts have termed an "infodemic." (1) Public figures from all walks of life have openly questioned public health consensuses regarding appropriate responses to the pandemic, including comedians like Joe Rogan, athletes like Aaron Rodgers, and politicians like Marjorie Taylor Greene. (2) In so doing, some such figures have also proposed alternative but largely unsubstantiated public health policies and courses of treatment. (3) The putative consequence of this phenomenon is that large swaths of the global public have foregone public health protocols and effective treatments. (4)

This problem demands comprehensive political, legal, and scientific interventions, most of which are beyond the scope of a single article. (5) This article contributes to the discussion on legal interventions by asking who, if anyone, should be liable in Canadian private law for the personal injuries resulting from the dissemination of medical misinformation, and on what grounds.

The focus of this article is not on those who knowingly spread medical misinformation with the intent of harming listeners or deceiving listeners so as to obtain some advantage. The torts of deceit and fraudulent misrepresentation appear to remedy the injuries arising from such conduct adequately. Instead, this article is concerned with medical misstatements which speakers believe to be true despite strong evidence to the contrary and which induce third parties to undertake harmful courses of treatment. This phenomenon presents far more difficult legal challenges.

The Canadian federal government considered this matter at the outset of the pandemic but has yet to provide a solution. (6) Nor does it appear that any Canadian courts or legal scholars have resolved the matter. Turning abroad for inspiration, there are two main proposals for apportioning liability for medical misinformation, both of which come from the United States. First, some politicians, including Senators Ben Ray Lujan and Amy Klobuchar, posit that the social media giants should be liable for infodemics, as most medical myths are spread on their platforms. (7) Second, Professors Reiss and Diamond argue that the current common law framework for the tort of negligent misrepresentation is adequately equipped to attribute liability for medical misinformation in a legally principled way. (8)

Conversely, this article contends that neither the platform liability approach nor the current negligent misrepresentation framework adequately balance the interests at stake. Any remedy for the dissemination of medical misinformation must balance the right to bodily integrity against the right to medical autonomy and the correlative public interest in medical dialogue. The platform liability approach gives inadequate weight to medical dialogue by mistakenly assuming that the social media giants know what constitutes misinformation such that they can police inaccurate content without silencing legitimate dissent. Meanwhile, the existing negligent misrepresentation framework gives inadequate weight to both interests. The framework provides inadequate protection for bodily integrity by immunizing mass disseminators on unsound freedom of expression grounds. Likewise, the framework constrains important medical dialogue by applying a reasonableness standard to volatile medical phenomena which have few immediately "reasonable" solutions.

This article proposes that Canadian courts instead adopt a new tort termed "reckless dissemination of medical misinformation", which targets medical misstatements where the speaker knows that reliance thereon would involve serious, uncommunicated health risks to listeners. The tort would combine principles from negligent misrepresentation and defamation law, with the former tort's basic structure and the latter tort's defences. Defamation, as a narrowly tailored limit on the public's right to debate matters of public interest, provides appropriate tools for balancing the public's need for a remedy to infodemics against its interest in medical dialogue.

The remainder of this article is structured as follows. Section I provides factual context regarding the history and consequences of infodemics. Section II investigates the legal interests at stake in the infodemic context. Section III surveys the literature on infodemic remedies and explains why the current proposals are unsatisfactory. Section IV outlines the tort of reckless dissemination, providing the basis on which the tort could be adopted into the common law, the elements of the tort which make it preferable over the current tort landscape, and examples of the tort's operation. Section V concludes and provides avenues for future research.

I THE FACTUAL CONTEXT: INFODEMICS ARE AN ENDURING PUBLIC HEALTH ISSUE

This section provides factual context regarding public health infodemics. Note that while this article advocates for a change to Canadian law, it relies on factual information and legal precedents from both Canada and the United States. The reasons for this dual reliance are two-fold. First, Canada and the United States share tightly interconnected cultures, such that major developments in the United States often spill over into Canada. Relatedly, infodemics spread through the internet, so the effects of the American infodemic know no borders--they have had direct consequences in Canada. (9) Second, Canada and the United States share similar legal systems and both states adhere to the common law, so developments in one state's tort law are relevant to the other's. In sum, the American experience with infodemics is probative of Canada's experience.

Infodemics typically entail the following four phenomena. First is the discreditation of empirically supported medical treatments. In the COVID-19 context, this issue has manifested primarily in unsubstantiated criticisms of the leading mRNA vaccines. These include the erroneous claims that the vaccines cause infertility, carry a high incidence of blood clotting, and offer no health benefits to those who have previously contracted COVID-19. (10)

Second is the promotion of alternative treatments which have little to no demonstrated efficacy. Many public figures, including Joe Rogan and Aaron Rodgers, have touted the benefits of alternative treatments for COVID-19 which have little empirical support. (11) Some such treatments--like Ivermectin and hydroxychloroquine--are relatively safe. (12) Other alleged treatments--such as methanol, disinfectant, and hydrogen peroxide ingestion--can be deadly. (13)

Third is the refutation of preventative public health measures. In the COVID-19 context, this phenomenon has manifested in protests against social distancing, lockdown, and mask protocols. (14) Some protestors accept that these protocols work in principle but maintain that the protocols' detrimental socio-economic effects outweigh their health benefits. (15) Other protestors contend that preventative public health measures have little to no public or individual health benefits, even when there is evidence to the contrary. (16)

Finally, fourth is the denial of the existence or severity of major public health crises. From the outset of the COVID-19 pandemic, many protestors have argued that the disease is a hoax, a government conspiracy, or so trivial as to be tantamount to the ordinary flu. (17) Such disbelief often overlaps with and is an underlying source of the foregoing claims.

Governments and the global medical community have undertaken substantial mitigation efforts to combat medical misinformation. The World Health Organization has repeatedly called for stronger state intervention against infodemics and has produced five calls to action directed at regulating the production and communication of medical research. (18) Meanwhile, the Canadian government has sought to combat infodemics with the "Digital Citizen Initiative", which provides funding to civil society groups that seek to improve civic, news, and digital media literacy. (19)

Nevertheless, these efforts came far too late to be effective. At the outset of the pandemic, the Bruno Kessler Foundation found that Twitter users posted an average of approximately 46,000 tweets containing COVID-19 misinformation per day. (20) Further, Statistics Canada reports that in a survey from July of 2020, 96% of respondents who relied on the internet to find pandemic-related information claimed to have encountered misleading, false, or inaccurate claims about the virus. (21)

There is strong circumstantial evidence that the proliferation of medical misinformation directly causes much of the public to adopt sub-optimal and even deleterious medical treatments. (22) In the COVID-19 context, the risks to those who succumb to medical myths are clear. By October of 2020, at least 800 people had died and 5,876 had been hospitalized globally as a direct cause of drinking methanol in the erroneous belief that doing so would cure COVID-19. (23) Further, in Ontario, unvaccinated persons comprised 90.5% and 89.8% of COVID-19-related...