Digital Malpractice: The Role of Professional Negligence and Public Policy in the Regulation of Digital Platforms

Abstract

Throughout its history, tort law has played a pivotal role in the continuous adaptation of the legal system to social and economic transformations amid periods of technological upheaval. Its adaptive function was often carried out through the doctrine of “public callings” – a common law category widely employed by courts to define the rights and duties of businesses operating in important service industries. In particular, this doctrine served to hold businesses liable for harms caused by the incompetent or insufficiently diligent performance of the services they undertook to provide. Over time, the public callings doctrine evolved into the more familiar frameworks of common carrier and public utility laws, which were increasingly employed by legislatures and regulators to advance economic regulation. As the onus of regulation thus shifted to other branches of government, tort law receded, largely abandoning the adaptive regulatory function it had historically performed. This Article draws on the rich history of tort-based regulation of service industries through the public-callings doctrine to propose a new conceptual regulatory framework for the digital space – one recognizing the systemic importance of two doctrinal offshoots of the public-callings doctrine: the tort of professional negligence, and complementary doctrines for invalidating exculpatory clauses limiting liability for negligent services on public policy grounds. Together, these doctrines establish a framework, which enables tort law to ensure that skill-, knowledge-, and expertise-based services – particularly those essential for participation in social and economic life – are delivered with reasonable proficiency in accordance with industry norms. These doctrines provide a basis for flexible and nuanced imposition of duties in emerging digital industries, and, as the Article contends, are particularly applicable to prominent digital platforms – arguably, the “public callings” of our era. Building on this analysis, the Article introduces the novel concept of “digital malpractice,” explores its potential applications across key functions performed by digital platforms, and calls for its broader adoption as a normatively grounded, adjudication-based regulatory framework for the modern digital environment.