Big Data and Personal Injury

A duty to warn for Internet service providers

Big Data and Personal Injury

Over the last two decades, the Internet has developed at a speed unmatched by any previous human ingenuity. It is hard to believe that “” was registered as a domain in 1997, and that Facebook only launched 12 years ago. Fast forward to today, Google processes an average of 40,000 search inquiries per second, 1.13 billion people log onto Facebook daily, and the Dalai Lama has a Twitter account! Most Canadians cannot imagine life without the Internet – a life that an increasing number of young Canadians have never known.

The convenience that the Internet brings is not for naught. In exchange, each individual user contributes to service providers’ collection of Big Data – the conglomerate of a tremendous number of data points which can then be analyzed to provide insight and to predict future outcomes. Internet service providers in turn sell this Big Data for whopping sums. This is not a surprise as those with access to Big Data can see into the future.

A few years ago, Google Flu Trends used search inquiries to predict the spread of influenza in almost 30 countries, including Canada. Last year, researchers analyzed the contents of tweets related to asthma to predict visits to the emergency room. A Microsoft study found that certain patterns of Bing searches were predictive of a future diagnosis of pancreatic cancer for some, with a false positive rate of only 0.001%. Scientists have now created an algorithm that analyzes photos on Instagram to correctly predict depression 70 percent of the time.

In stark contrast to the development of the Internet is the development of the law governing it. Canadian law has not kept up with the host of quagmires the Internet presents. Much of the existing discourse centres on the privacy, contractual and consumer rights of Internet and social media users.

But what about the tortious liability of Internet service providers and data processors in instances of personal injury?

Could the principles of personal injury torts extend to govern these players as a special category of service providers who owe a duty of care to users and perhaps to third parties? Are Internet service providers, including social media hosts, a special breed of occupier, social host or even manufacturer? Or are they simply immune from existing tort principles?

If a service provider commercializes personal data from its users for financial gain, then there must be sufficient proximity between the user and provider to see the snail in the bottle of ginger beer? While the definition of “premises” under the BC Occupiers Liability Act includes a list of tangible locales, could this non-exhaustive definition extend to govern cyberspace?

Commentators have postulated the boundless potential for the Internet to pre-diagnose problems for its users, medical and otherwise. Many suggest an opt-in system whereby users may agree to receive warnings. But is this enough? Rather than accepting the help of the Internet and its crystal ball, should the law impose a positive duty to warn, when Internet service providers know about dangers ahead based on the data that they are already processing for commercial gain? If newfangled cars with more than 100 data collection points can predict the seriousness of injuries after a crash, shouldn’t the processor of that data be obligated to warn and prepare emergency response crews to better the driver’s chances of survival?

The answers to these questions are surprisingly un-Googlable. Nor are they addressable in this piece, which merely hopes that the questions posed will inspire future debate.

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