Measles and Misrepresentation in Minnesota: Can there be Liability for Anti Vaccine Misinformation that Causes Bodily Harm?

67 Pages Posted: 29 Jan 2019 Last revised: 19 Mar 2019

See all articles by Dorit Rubinstein Reiss

Dorit Rubinstein Reiss

University of California Hastings College of the Law

John L. Diamond

University of California Hastings College of the Law

Date Written: January 17, 2019

Abstract

Balancing protecting and compensating victims of harmful fake news and protecting freedom of speech and the information flow is both important and challenging. Vaccines are one area where misinformation can directly cause harm. When misrepresentation leads people to refuse vaccines, disease outbreaks can happen, causing harms, even deaths, and imposing costs on the community. The tort of negligent misrepresentation that causes physical harm appears a custom-made remedy for those affected. However, courts – appropriately – narrowed the tort to protect freedom of speech and the flow of information. This article uses an especially egregious example of anti-vaccine misrepresentation to examine the boundaries of the tort. In 2017, a measles outbreak in Minnesota sickened tens of people, mostly young children of the Somali community in Minneapolis, and hospitalized over twenty young children. The outbreak can be clearly linked to efforts by anti-vaccine groups to target the Somali community and convince its members that the measles, mumps, rubella vaccine (MMR) causes autism – a claim countered by extensive evidence. Using this case, the article examines under what circumstances promoters of misinformation can be held liable for negligent misrepresentation, suggesting a distinction between counseling-like situations and purely public speech, and between types of communications.

Keywords: Misrepresentation, Vaccines, Public Health

JEL Classification: K13, K32, I18

Suggested Citation

Reiss, Dorit Rubinstein and Diamond, John L., Measles and Misrepresentation in Minnesota: Can there be Liability for Anti Vaccine Misinformation that Causes Bodily Harm? (January 17, 2019). San Diego Law Review, Vol. 56, No. 3, 2019; UC Hastings Research Paper No. 314. Available at SSRN: https://ssrn.com/abstract=3317752 or http://dx.doi.org/10.2139/ssrn.3317752

Dorit Rubinstein Reiss (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-5654844 (Phone)
415-5654865 (Fax)

John L. Diamond

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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