Fraud Law and Misinfodemics

Abstract

During the COVID-19 pandemic, many on whom the public depends for truthful information purposefully or recklessly spread misinformation that put thousands at risk. The term “misinfodemic,” coined in 2019, describes such events, where misinformation facilitates the spread of a disease or causes some other health-related outcome. Though the term was only recently defined, the recent misinfodemic was not a new or novel phenomenon. False information is spread to the public all the time. This often results in harm to public health. False claims are communicated by corporations seeking to mislead the public to make more money, by politicians to gain votes and support, and by media outlets to increase viewership and advertising revenue. Although these and other deceptions of the public for profit might be unethical, they are legal. This Article explores the question of why. There are two key components to this analysis, one centered on tort law and the other on the First Amendment. This Article will focus only on tort law aspects. This Article discusses how fraud law developed to focus almost exclusively on personal deceptions while almost entirely ignoring impersonal deceptions like deceptions of the public. As a result, there is most often no tort remedy available to individuals harmed by misinfodemics. This Article prescribes a fix for this gap in the law: treat fraud on the public like any other fraud by prohibiting misinformation and punishing those who spread it. Precedent and policy support imposing civil remedies against those who purposefully or recklessly mislead the public for gain. The important First Amendment aspects of this issue will be addressed in future scholarship.

Keywords: disinformation, misinformation, fraud on the public, COVID-19, torts, health law, public health

JEL Classification: K10, K13, K32