Catch Up: Legal Accountability in the Face of Health Misinformation

By Kemarah Thermidor '27

Part III out of III of an analysis of current legislation regarding health misinformation: Who does the law suggest bears the legal responsibility for the harmful outcomes of health misinformation, especially online?

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With online health misinformation establishing itself as both an urgent issue and one that can be tackled through legislative action, the question remains: who is culpable for the harmful outcomes that may occur with the spread of online health misinformation? Murthy v. Missouri implied that social media companies and federal agencies have minimal regulations regarding practices to prevent the spread of misinformed content. (1) While the Court did not side with plaintiffs, their concern about how their right to free speech and social media content moderation policies coincide is reasonable. The regulation of speech, even with the intent to protect the general public, may still leave room for a slippery slope. 

While this concern may be valid, it may also be overstated, considering the existing frameworks that prevent the violation of First Amendment rights. In other words, “if a law targets speech based on its expressive content, that content-based regulation will trigger strict scrutiny analysis.” (2) There are consistent historical examples that act as guidelines for the prohibition of certain kinds of speech, such as perjury, defamation, and fraud. (3) The heart of these prohibitions is to mitigate and avoid the harmful outcomes of certain forms of unregulated speech. This precedent does not really factor in third-party spaces that allow these forms of unregulated speech to manifest; it places the individual exhibiting the speech responsible for their actions. In the context of online health misinformation, the individuals to consider would be individual users of online platforms, and more specifically, influencers who have a mass following and perceived authority. Social media companies may be able to bear some level of responsibility in targeting a symptom of the problem of misinformation, but the lack of direct consequences for those creating the content and spreading it fails to target the root of the issue.

On a global scale, the concern over the impacts of online health misinformation is rampant. As recent as this past October 2025, China implemented a new law to require online influencers to possess accreditation such as a degree or certificate when discussing “serious topics like finance, health, and law online.” (4) The new law was in accordance with the Cyperspace Administration of China’s efforts to mitigate misinformation online, with the attempt extending to even banning advertisements for certain products within “educational content.” (5) This new law also requires users to clarify if a post uses AI-generated content, a recent online trend that has also raised concerns about the veracity of online content. (6) The acknowledgement of this new Chinese law is not an endorsement, but rather an exploration of what it means to hold individuals with an online audience accountable to face legal consequences. On one hand, some may seem this policy as an extremist one, with some viewing this as “another way to tighten control over speech.” (7) On the other hand, the policy’s implementation is viewed as an effort “to bridge the divide between old-world professional standards and new-world digital platforms,” emphasizing that the influencer role is not being abandoned, but rather adjusted to. (8) Whether or not outsiders view this new law as genius or egregious, it is practically undeniable that China’s approach to tackling online misinformation has global implications. Most of the world is experiencing unprecedented technological dilemmas. This is especially relevant as it pertains to what the criminal justice system can address when outlining what is acceptable and what isn’t. The way China implements its particular system within its government will be assessed in understanding what legal restrictions on online influencers can accomplish in the long term. 

One of the reasons this development will be particularly intriguing to see, as it relates to what the U.S. Constitutional framework allows, is due to the potential paradox presented when trying to prove intent to misinform on an individual basis. U.S. legal frameworks regarding the spread of misinformation clarify that for an individual to face a penalty, he or she must “know the information to be false” (Knowledge Criterion) and “willfully and maliciously, or with reckless disregard for the safety of human life” (Malice Criterion) spread the information. (9) As previously stated (see part II or III), both social media companies and Congress acknowledge the obligation of online platforms to incorporate policies and algorithims that dissuade or remove misinformation, but there remains ambiguity for what obligations there are for individuals on these online platforms who have a significant following and in turn, an audience that may be influenced by what they say whether true or untrue. 

In February 2025, Netflix launched the Australian drama, “Apple Cider Vinegar,” which followed two different women as they promoted wellness remedies to treat and cure cancer. (10) One might be able to guess the havoc within the plot, but it’s harder to believe that the drama was based on the real story of Belle Gibson, who was able to publish a cookbook and release a wellness app due to the following she had amassed online by lying about curing her cancer by eating healthy. (11) Gibson was fined $410,000 under consumer protection law after Australia’s Director of Consumer Affairs took legal action. (12) In this case, Gibson’s lies about her medical history and revenue from the health claims she was making were in clear accordance with the United States’ knowledge and malice criterion for penalizing the spread of misinformation. To make matters worse, Gibson was reaching a particularly vulnerable population, as her advice for treating cancer was life-threatening for her followers who were deceived into trusting her. Even though it’s an extreme scenario, the Belle Gibson case proves there is value in creating a framework that lends more responsibility to online influencers for the information they convey to their audience. Better put, “at its heart, the case is about abuse of trust,” a principle that the U.S. should consider in addressing online health misinformation when the stakes are so high. (13)

The need for better clarification of legislation that targets health misinformation, upheld by the Constitution’s priority for public health and safety, can begin to be met by placing responsibility where it should be. Social media companies have already begun to incorporate systems to address the misinformation present on their platforms, but this has little to no consequence for those individuals who are directly contributing to the presence of the misinformation in the first place. This level of culpability on the part of influencers has started to be acknowledged by countries such as China and Australia, who have addressed the issue in their own ways, but the U.S. legal system has not taken a strong and consistent stance on how this issue might be confronted. The pervasiveness and accessibility of online misinformation present an extreme public health risk and far too many potential dire outcomes for legal responsibility to not be placed on those who perpetuate it.

Endnotes

1. Murthy v. Missouri, Oyez, accessed September 27, 2025, https://www.oyez.org/cases/2023/23-411.

2. Valerie Brannon, False Speech and the First Amendment: Constitutional Limits on Regulating Misinformation, Congressional Research Service, 2025, https://www.congress.gov/crs-product/IF12180.

3. Ibid.

4. ET Online, “No Degree, No Discussion? China Tightens the Grip on Influencers and Its New Law Has Sparked Massive Debate,” Economic Times, 2025, https://economictimes.indiatimes.com/news/international/global-trends/us-news-no-degree-no-discussion-china-tightens-the-grip-on-influencers-and-its-new-law-has-sparked-massive-debate-online-check-details/articleshow/124929667.cms.

5. Ibid.

6. Ibid.

7. Henry Oduah, “China’s New Influencer Law Sparks Debate Over Online Freedom,” Vanguard News, 2025, https://www.vanguardngr.com/2025/10/chinas-new-influencer-law-sparks-debate-over-online-freedom/.

8. Tim Bajarin, “China’s Credentialing Crackdown: A Reset for the Influencer Economy,” Forbes, November 13, 2025, https://www.forbes.com/sites/timbajarin/2025/11/13/chinas-credentialing-crackdown-a-reset-for-the-influencer-economy/.

9. Cornell Law School, “18 U.S. Code § 35 — Imparting or Conveying False Information,” Legal Information Institute, accessed September 27, 2025, https://www.law.cornell.edu/uscode/text/18/35.

10. Olivia B. Waxman, “What to Know About the Wellness Guru Who Faked Cancer and Inspired Netflix’s Apple Cider Vinegar,” Time, 2025, https://time.com/7213216/apple-cider-vinegar-true-story-netflix/.

11. Sondra Davoren, “Abuse of Trust: The Case of Belle Gibson and Fake Cancer Cures,” McCabe Centre for Law and Cancer, 2017, https://www.mccabecentre.org/news-and-updates/abuse-of-trust-the-case-of-belle-gibson-and-fake-cancer-cures.html.

12. Ibid.

13. Ibid.