Where parties are in contractual privity, tort claims require a duty independent of the contract. Courts divide on whether data security obligations arise independently or only from the agreement.
The requirement operates alongside the economic loss rule.
Alternative Names:
Independent Duty Rule|Independent Tort Duty
Why it Matters?
Whether a data security duty exists independently determines if a customer can plead negligence alongside breach of contract, and jurisdictions recognizing an independent duty permit tort claims carrying broader damages and potential punitive exposure. Terms of service addressing security expressly may paradoxically strengthen the argument that the duty is contractual only, which is a drafting consideration cutting against detailed security commitments.
Frequently Confused with
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Frequently asked questions
What does the requirement determine?
What drafting consideration follows?
