Why did Lauren Rosenberg cross the road? Probably not for the purpose of creating case law that will help shield publishers in augmented, social, and other digital media from liability when users of those media hurt themselves. But that’s exactly what she accomplished.
Ms. Rosenberg is a Utah resident. One day she found herself wanting to walk somewhere, so she typed her destination into Google Maps. The results she got back included crossing Deer Valley Drive, a “rural highway with heavy traffic and no sidewalks.“ Rosenberg dutifully followed those directions, and wound up being struck by a negligent driver. She sued the driver, but also sued Google for giving her such allegedly dangerous instructions.
Google won handily, persuading Utah District Court Judge Deno G. Himonas to dismiss the case as a matter of law. In order for Google to have been liable to Rosenberg for negligence, it must first have owed her some kind of duty. (“Duty” is a fundamental concept in negligence law; if you don’t owe someone any duty, then you can’t be negligent in how you perform that duty.) The court found that Google had no duty to ensure that Rosenberg would remain safe while following its directions, and no duty to warn her of dangers along the way, such as that Deer Valley Drive has no sidewalks.
The court’s reasons for its conclusions apply to a far broader range of digital media than Google Maps alone. For example, the court relied on decades of legal precedent holding that mass-market book publishers owe no duty to their readers to ensure that all content in their books is accurate. No less than the U.S. Supreme Court has acknowledged that errors are “inevitable” in the publishing business. Many courts have recognized that holding publishers liable for all injuries that any reader may incur while following imperfect published instructions would be incredibly onerous and create a nearly insurmountable disincentive to publishing anything at all.
Rosenberg tried to distinguish these well-established legal principles by arguing that Google was not a mass-market publisher, but rather a service provider that she relied on to provide one-on-one advice. (Negligence law does often impose on such individualized service providers a higher responsibility to get it right.) After all, Google provided her customized directions base on her specific location and the destination that she typed in.
But the court saw through this argument. It recognized that just because people use Google Maps one at a time does not make the database any less of a mass-market publication:
To claim that Google provided the information only to one individual, and therefore is not entitled to the protections afforded to publishers, ignores the realities of modern society and technology. As Google notes, [Rosenberg's] Complaint itself states that the information provided on the Google Maps service “is readily available via the internet,” … and any individual who enters the same starting and ending points will obtain the same walking directions that were provided to Rosenberg. … Given these facts, it is difficult to imagine that information could be disseminated more broadly to the public. Therefore, Google is clearly a publisher because it makes all of the information on the Google Maps service available to the public worldwide, and the fact that a user of the Google Maps service obtains customized search results does not remove the protections afforded to any other publisher of information to the public. (Pp.7-8).
This may seem like a no-brainer for regular users of online apps and services like Google Maps, but it’s never a guarantee that everyday common sense will translate into governing legal principles, especially as applied to rapidly evolving digital technologies. And if other courts follow Judge Himonas’ lead, the result will be strong legal protections for a whole host of internet-enabled services–from other mapping programs like Bing Maps and Mapquest, to social review and advice sites such as Facebook, Yelp!, and Foursquare, to knowledge-aggregation sites like Quora and Wikipedia, to the exploding number of cutting-edge guiding and experience-enhancement services in the augmented reality industry, such as Layar, Tagwhat, and daqri.
Judge Himonas also explained why it makes good public policy sense to give such broad protection to publishers, whether in digital or any other media. First, as a matter of principle, ours is a society that has always placed a high priority on the free flow of information and the unfettered exchange of ideas. This principle is enshrined in the First Amendment to the U.S. Constitution, and motivates a wide range of legal protections against legal liability based on speech, whether oral or written.
Second, users are ultimately the ones most responsible for their own safety. Just because Google tries to make its maps customizable, accessible, and accurate does not relieve users of the responsibility of looking both ways before crossing the street. Indeed, even without having had a full trial to develop all the facts in this case, Judge Himonas was confortable in speculating that Rosenberg’s own negligence was the most likely cause of her injuries:
[I]t is unlikely that a pedestrian will be injured while crossing a road, as Rosenberg was here, unless the pedestrian breaches their own duty and disregards the risks to cross the road in front of oncoming traffic…. Google was not required to anticipate that a user of the Google Maps service would cross the road without looking for cars. [Pp. 5-6]
Besides, as the court also noted, the user will always be in the best position to apply internet-provided data to real-world conditions. ”Google provided the walking directions from a remote location, while Rosenberg was actually on the scene where she could assess the safety risks before attempting to cross [the road].” This just makes sense. Google Maps’ driving directions have never told me to stop at red lights or avoid things that jump out in front of my car, but I can’t blame Google if I fail to do those things.
But one has to wonder how far this principle will go. At what point will digital information become so inherently trustworthy, and so tied to the user’s real-life, physical surroundings, that the provider of that information should be held responsible for not anticipating or reacting to those conditions? That certainly seems unlikely to happen anytime soon. Even the AR apps currently on the market continue to use standard digital text, photo, and audiovisual content; they just display that content in a way that superimposes it on a video feed of physical surroundings, or by using certain physical features to trigger that content. But existing mechanical vision hardware is still too primitive to perceive and adapt to physical surroundings in any meaningful or reliable way.
Ironically enough, Google itself may some day be the first company to create programs that individuals rely on to react to their surroundings, if Google’s self-driving cars ever become commercially available.
Meanwhile, though, services like Google Maps (and thousands of other internet-enabled apps) have “high social utility” (in Judge Himonas’ words), as demonstrated by our ever-increasing reliance on them in everyday life. Courts, therefore, must be exceedingly cautious not to impose overly burdensome legal duties that dissuade innovators from developing and improving these technologies. Otherwise, the people of the world who don’t look both ways before crossing the street may deprive the rest of us of valuable, life-enhancing digital tools.