Websites like YouTube pay creators of original content based on the advertising watched by viewers of their videos. Some people make a living solely by creating videos for YouTube; “YouTube celebrities” can earn well over $1 million a year. The potential payoff from large view-counts has encouraged the rise of stunt videos, in which people do dangerous things solely to attract clicks. Last year a woman fatally shot her boyfriend in a stunt they had planned to increase their viewership. Do sites like YouTube bear any legal responsibility for encouraging such behavior?
Assumption of risk limits liability
The short answer is: probably not. One reason is that individuals who knowingly engage in risky behavior typically bear responsibility for any injuries they suffer. A personal injury lawsuit usually requires the plaintiff to prove that the defendant was negligent in some way, and the negligence caused the plaintiff’s injury. But if the plaintiff assumed the risk of injury, the defendant will not be held liable.
In legal terms, assumption of risk only requires that the plaintiff voluntarily exposed himself or herself to a risk of injury that he or she knew about at the time. This is a fairly low bar that one can see would apply to cases like “stunts” involving guns or other dangerous instruments. It should go without saying that pointing a loaded weapon at yourself is inherently dangerous.
Website terms of service generally disclaim liability
Websites can also rest their defense on a contract theory. Most social media websites require users to agree to some form of user contract that limits the website owner’s liability for the content shown on the site. YouTube’s Terms of Service offers a straightforward example. In paragraph 6(F) YouTube indicates that it doesn’t endorse any user content, and “expressly disclaims any and all liability” for the content on its site. Although in some cases these contracts may be unenforceable, overcoming them can require a rare set of circumstances.
Direct intervention may open the door to liability
Despite their liability waivers, sites will sometimes take steps to remove content that encourages dangerous behavior. YouTube and Facebook have been actively removing videos that encourage people to eat detergent pods, showing that they feel a degree of responsibility to police the content on their sites. Taking steps to address content that encourages viewers to take risk might expose websites to liability for content that escapes removal, on grounds that the sites have acknowledged through their actions that the content is dangerous.
Of course, if a website itself creates content or deliberately encourages risky behavior, the scales tilt in favor of liability. For example, if YouTube were to sponsor a contest encouraging people to post videos of their most extreme bike stunts, it would no longer be a passive host. But even in those cases, the user’s assumption of risk would still offer a substantial defense.
GGRM represents injured clients in the Las Vegas area
For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in the Las Vegas area in cases involving personal injury. If you have questions about whether you can sue a website for encouraging dangerous behavior, our attorneys can answer your questions. To speak to an attorney at no cost, please give us a call today at 702-388-4476. We can also be reached through our contacts page.