In the digital Era, who is my Neighbour?

Donoghue v Stevenson [1932] A.C 562

When a partly decomposed snail was found in a bottle of ginger beer, it was held that the manufacturer of the drink owed a duty of care to the eventual consumer, and was therefore liable for her inconvenience and illness. This is known as the ‘neighbour’ principle (where it is foreseeable that a person will be affected by actions, then a duty of care is owed to that person). That is the case that is very famous and has been relied on in various cases against our soda bottlers with mostly successful outcomes for damage seekers. This House of Lords decision has been reviewed so much and is hailed as the mother of tort law as we know it today.

Lord Atkin articulated the principle in the following landmark legal pronouncement:The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Cases looked at ranged from those where duty required physical proximity to the person or property, to those that gave a wider interpretation to the proximity rule to apply to the case of goods supplied knowing that the user may not have a reasonable opportunity for inspection before use.

Lord Buchmaster also extensively  analysed common law cases which posited that except in the cases of fraud, duty of care must arise from existence of a contract. The exceptions to the rule  were as follows:

• an article dangerous in itself
• an article not dangerous in itself, but dangerous due to some defect or other reason known to the manufacturer.

 He also cited Lord Esher M.R in Heaven v Pender who summed up the position in various cases as follows:” wherever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other a duty arises to use ordinary care and skill to avoid such danger.”

He added that in absence of contract, the law would imply the duty.Again, Lord Atkin in arguing in the interest of social responsibility cited the following: “My Lords, I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilised society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong.”

To bring the issue closer to digital era, we have to address situations that can possibly lead to harm in the course of interfacing: Exposing personal data received from a 3rd party (which information may in addition to that party, be from other parties connected to the same transaction), to unauthorised persons who might use it to harm that person, family or property. The example is financial institutions who may contract with one person, their client, but gather information about the guarantor, the spouse, the lawyer and a seller in a transaction. All these usually reveal National Identity card numbers, bank account details, phone numbers, Box Numbers and Tax Pin Certificates. This falls under the category of sensitive data as it can occasion loss and injury if the data is in the hands of criminals. The loss varies from identity theft to actual tracing and inflicting physical harm on the data subject or inflicting non material damage.

One of the causes of breach is negligence in handling Data. Negligence is the platform on which the neighbourhood principle was built and it is worth considering whether negligence in handling sensitive data leading to injury which can be termed foreseeable in this era will be the new tort.  Will the General Data Protection Regulations(GDPR) be the  new standard  of duty of care?

The neighbourhood principle was also applied to negligent misstatements.

Negligent Misstatement is a statement meant honestly but carelessly usually in the form of advice given by a party with special skill/ knowledge to a party that does not possess this skill or knowledge. This tort was discussed in the case of Hedley Byrne & Co. Ltd. vs Heller & Partners Ltd.[1964 ] A.C 465

Lord Morris had this to say: “if someone possessing special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise” (online source)

We are now faced with a barrage of opinions, advice and statements from online sources including authors who do not disclose their qualifications but claim careful inquiry leaving no doubt that whatever they post is a well sourced statement which should be relied upon. Statements range from business advice, educational tips, nutrition suggestions, etc. Whereas some put disclaimers along with the posts, others urge readers to follow the advice an example being whattsApp platforms.

In view of the obvious fact that more and more people are relying on those online statements which do sometimes occasion negative results, how can the public be protected?Just seen an example of such effects in a post from @thenasem (National academy of sciences engineering & medicine) stating that measles outbreaks in the US are being fueled by misinformation about safety of vaccines.We know for sure, misinformation on anything is spreading so fast due to the online conversations.

There is need to establish:

• Can a duty of care to the readers be inferred in certain circumstances?
• Can the harm suffered be traced back to the posted articles or statements? how?
• Who owes the duty, the website host?, whatsApp manager? the posting party or original author?
• Is there reasonable expectation that one can cause damage through online posts?
• Consider the outcry against social media when youths are entrapped by dangerous characters online.

This needs to be looked into to establish both the contractual online relationships and the non contractual ones whereby those we do not know from far away jurisdictions affect our every action including analysing our likes and dislikes and anticipating our reactions. We have a growing community of people whose interactions are predominantly with the online community.

So In this digital era, who in law is my neighbour?

Author – Gertrude Matata – Advocate / mediator