1

Over the last few years ASMR has become very popular.

If you don't know what ASMR is, it's video/audio content (popular on Youtube and Twitch) where the host whispers or taps on the microphone, usually switching from left to right channel. The purpose of this is to make the audience relax, and often advertised as a sleep aide.

  • This content must be listened to with headphones for the effect to work.
  • Users must turn their volume up, as the effect takes place when the low volume sounds are played at a normal to high volume level.
  • Turning up the volume subsequently increases the maximum available volume for loud sounds to a point where it would be loud enough to damage hearing.

Both the owner of the content and platform can choose (within their control) to place adverts throughout the content. These adverts appear suddenly and play at the full volume available.

Not only is it unpleasant and startling, but can physically damage both the listener's hearing, and the listener's headphones.

I am wondering if either the content creators or platforms can be held liable for damages, given the content is designed to be consumed through headphones at a high volume, without any warning regarding adverts and relative volume level?

Even with a generic advert/volume warning, this wouldn't be sufficient to prevent the user from being exposed to high volume adverts. They would have to manually control volume and predict when an advert begins, which isn't possible, certainly not if they're asleep.

2

Potentially. You didn't list a location so I'll go with a generic US/UK/similar answer here.

Two things would be necessary here- damages and fault. Damages in this case could be physical (loss of hearing), financial (replacing the headphones) or emotional (gaining a fear of ASMR- this one's the hardest to prove).

Fault in this case would be negligence rather than malice (though I can imagine a particularly meanspirited person putting an airhorn in ASMR. In this case, it would need to be demonstrated that video creator (some jurisdictions use "a reasonable person" instead) knew that there was a risk of this happening yet did it anyway.

Is it reasonable to believe putting a loud advert in an ASMR video that encourages someone to raise their volume could end badly? That's for the court to decide.

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