A Slap in the Face(book)?

Social media law has become somewhat of a contentious issue in recent years. While most people nowadays could not imagine life without it, many realize too, that it’s influence on our daily lives may not be a great thing. As the technology has advanced to unimaginable levels and the platforms have boomed in popularity, it seems as though our smart phones and Big Tech know our every move. The leading social media platform, Facebook, has around 1.82 billion active users a day, with people volunteering all sorts of personal information to be stored in the internet database. Individual profiles hold pictures of our children, our friends, our family, meals we eat, locations we visit. “What’s on your mind?” is the opening invite to any Facebook page, and one can only hazard a guess as to how many people actually answer that question on a daily basis.  Social media sites know our likes, our dislikes, our preferences, our moods, the shoes we want to buy for that dress we are thinking of wearing to the party we are looking forward to in three weeks!

With all that knowledge, comes enormous power, and through algorithmic design, social media can manipulate our thoughts and beliefs by controlling what we see and don’t see. With all that power, therefore, should come responsibility, but Section 230 of the Communications Decency Act (CDA) has created a stark disconnect between the two. What started out as a worthy protection for internet service providers for the content posted by others, has more recently drawn criticism for the lack of accountability held by social media oligarchs such as Jack Dorsey (Twitter) and Mark Zuckerberg (Facebook).

However, that could all be about to change.

On May 28, 2017, three friends lost their lives in a deadly car accident in which the 17-year-old driver, Jason Davis, crashed into a tree at an estimated speed of 113 mph. Landen Brown, 20, and Hunter Morby, 17, were passengers. Tragic accident? Or wrongful death?

Parents of the deceased lay blame on the Snapchat App, which offered a ‘Speed Filter’ that would clock how fast you were moving, and allowed users to snap and share videos of their movements in progress.

You see where this is going.

As quickly became the trend, the three youths used the app to see how fast they could record the speed of their car. Just moments before their deaths, Davis had posted a ‘snap’ clocking the car’s speed at 123 mph. In Lemmon v Snap, the parents of two of the boys brought suit against the social media provider, Snap, Inc., claiming that the app feature encouraged reckless driving and ultimately served to “entice” the young users to their death.

Until now, social media platforms and other internet service providers have enjoyed the protection of near absolute immunity from liability. Written in 1996, Section 230 was designed to protect tech companies from liability, for suits such as defamation, for third party posts. In the early days, it was small tech companies, or an online business with a ‘comments’ feature that generally saw the benefits of the Code. 25 years later, many people are questioning the role of Section 230 within the vastly developing era of social media and the powerful pass it grants Big Tech in many of its societal shortcomings.

Regarded more as an open forum than the publisher or speaker, social media platforms such as Facebook, Twitter, TikTok, Instagram and Snapchat, have been shielded by Section 230 from any legal claims of harm caused by the content posted on their sites.

Applied broadly, it is argued that Section 230 prevents Snap, Inc. from being held legally responsible for the deaths of the three boys in this case, which is the defense the tech company relied upon. The district court dismissed the case on those grounds, holding that the captured speeds fall into the category of content published by a third party, for which the service provider cannot be held liable. The Ninth Circuit however, disagrees. The Court’s interesting swerve of such immunity, is that the speed filter resulted in the deaths of the boys regardless of whether or not their captured speeds were posted. In other words, it did not matter if the vehicle’s speed was shared with others in the app; the fact that the app promotes, and rewards, high speed (although the award system within the app is not entirely clear), is enough.

The implications of this could be tremendous. At a time when debate over 230 reevaluations is already heavy, this precedential interpretation of Section 230 could lead to some cleverly formulated legal arguments for holding internet service providers accountable for some of the highly damaging effects of internet, social media and smart phone usage.

For the many benefits the internet has to offer, it can no longer be denied that there is another, very ugly side to internet usage, in particular with social media.

It is somewhat of an open secret that social media platforms such as Facebook and Instagram, purposely design their apps to be addictive by its users. It is also no secret that there is a growing association between social media usage and suicides, depression and other mental health issues. Cyber bullying has long been a very real problem. In addition, studies have shown that smart device screen time in very young children has shockingly detrimental impacts on a child’s social and emotional developments,  not to mention the now commonly known damage it can have on a person’s eyesight.

An increased rate of divorces has been linked to smart phones, and distracted driving – whether it be texting or keeping tabs on your Twitter retweets, or Facebook ‘likes’– is on the increase. Even an increase in accidents while walking has been linked to distractions caused by the addictive smart devices.

With the idea of accountability being the underlying issue, it can of course be stated that almost all of these problems should be a matter of personal responsibility. Growing apart from your spouse? Ditch your cell phone and reinvent date night. Feeling depressed about your life as you ‘heart’ a picture of your colleague’s wine glass in front of a perfect sunset beach backdrop? Close your laptop and stop comparing yourself to everyone else’s highlights. Step in front of a cyclist while LOL’ing in a group text? Seriously….put your Apple Watch hand in your pocket and look where you are going! The list of personal-blame is endless. But then we hear about three young friends, two still in their teens, who lose their lives engaged with social media, and suddenly it’s not so easy to blame them for their own devastating misfortune.

While social media sites cannot be held responsible for the content posted by others, no matter how hurtful it might be to some, or no matter what actions it leads others to take, should they be held responsible for negligently making their sites so addictive, so emotionally manipulative and so targeted towards individual users, that such extensive and compulsive use leads to dire consequences? According to the Ninth Circuit, negligent app design can in fact be a cause of action for wrongful death.

With a potential crack in the 230-armor, the questions many lawyers will be scrambling to ask are:

      • What duties do the smart device producers and/or internet service providers owe to their users?
      • Are these duties breached by continuing to design, produce, and provide products that are now known to create such disturbing problems?
      • What injuries have occurred and where those injuries foreseeably caused by any such breaches of duty?

For the time being, it is unlikely that any substantial milestone will be reached with regards to Big Tech accountability, but the Ninth Circuit decision in this case has certainly delivered a powerful blow to the Big Tech apparent untouchability in the courtroom.

As awareness of all these social media related issues grow, could this court decision open the door to further suits of defective or negligent product design resulting in death or injury? Time will tell…..stay tuned.

Snapchat’s “Speed Filter” Fuels Fatalities

Upon its launch in 2011, the mobile app known as “Snapchat” quickly gained downloads, now totaling 265 million daily active Snapchat users worldwide. Snapchat revolutionized the social media world with the introduction of filters – debuting “smart filters” to capture time, speed, and temperature in 2013, followed by “Geofilters” in August 2014 and “Discover” and “Lenses” in January 2015.

Snapchat in 2013

While filters can provide fun visual effects and cool color edits, the “speed filter” drew criticism early on for encouraging yet another distraction on the road for young drivers. Newly licensed teens could hardly wait to get in the driver’s seat and snap a selfie overlayed with vehicle speed in real time. The widespread belief is that users would earn a virtual trophy through the apps reward system for snapping speeds over 100 miles per hour (mph) – further fueling the recklessness.

img: The Odyssey

Concerns were raised early on regarding the dangers of the speed filter, and Snap responded by attaching a “Do Not Snap and Drive” disclaimer in 2016. Despite the company’s minimal efforts to limit the use of the feature while driving, life-threatening and fatal car accidents linked to the filter prevailed.


Studies indicate that Snapchat leads the list of apps most distracting for young drivers, and more than a third of teens surveyed admitted to Snapping while driving. The National Highway Transportation Safety Administration reports nearly 26,004 deaths due to distracted driving accidents between 2012 and 2019. By 2018, distraction-related fatalities increased by 10% – killing 2,841 people and injuring 400,000 more. Drivers under the age of 19 account for the largest proportion of distracted driving fatalities.

One of the earliest accidents involving the filter occurred in September 2015, with 18-year-old Christal McGee behind the wheel of her father’s Mercedes. McGee admitted to grabbing her phone and using the filter to see how fast she could go. The Atlanta-teen doubled the speed limit at roughly 113 mph before colliding with an Uber driver who was just beginning his night shift. As a result of the accident, the Uber driver was hospitalized for months and suffered a traumatic brain injury. He sued both McGee and Snapchat for negligence damages, alleging equal responsibility by Snapchat for the crash because they failed to delete the miles per hour filter after it was cited in similar accidents prior to the September 2015 crash.

Likewise, an incident occurred in late 2016 when 22-year-old Pablo Cortes posted a Snapchat video with the speed filter, accelerating from 82 mph to 115.6 mph. Just nine minutes later, Cortes lost control and struck a minivan – killing both himself and his 19-year-old passenger, Jolie Bartolome, as well as a mother and two of her children.

In the past, Snapchat has not faced liability for incidents arising out of the speed filter due to the Communications Decency Act (CDA). Section 230 of the CDA states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230). Congress established the CDA in 1996, with the intent to better regulate pornographic material on the Internet. With the growth of social media, it serves as a powerful tool that shields tech companies and social media platforms from potential liability for content posted by their users.

However, just last month the Court of Appeals for the Ninth Circuit unanimously held that the CDA does not shield the creators of Snapchat from claims. The lawsuit in Lemmon v. Snap arises out of an incident that occurred May of 2017, fatally wounding three young boys. The 17-year-old driver and his two buddies used the speed filter to record a high of 123 mph, just before hitting a tree at 113 mph. The parents of the deceased teens filed a lawsuit in 2019, alleging the “negligent design” of the Snap Inc. app contributed to the crash by encouraging speeding. The trial judge erroneously dismissed the case in 2020, citing the immunity social media companies enjoy under the CDA.

In departing from the district court’s decision, the Ninth Circuit applied the three-prong test set forth in Barnes v. Yahoo!, Inc. (2009) to assess whether Section 230 would apply to immunize Snap from the claims. As such, CDA immunity will shield Snap from liability only if  “(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.” (quoting Barnes). In thoughtfully analyzing each of the three prongs, the Court reversed the district court’s dismissal of the lawsuit and remanded it for further proceedings.

This new recognition rests on the fact that the suit is not about what someone posted to Snapchat, but rather negligence in the design of the app overall. The decision is a huge turning point in Internet law and regulation because it establishes that an internet company can be held liable for products with a defective design. Although the language of Section 230 grants broad discretion, Lemmon is a clear demonstration that Internet immunity has its limits and is not guaranteed. While the ruling is among the minority that have rejected CDA immunity to design claims against internet platforms, this radical departure from earlier decisions opens the door to future legal challenges to CDA immunity by alleging injury based on how the website’s design affected the user, rather than how the user’s content affected a third party.

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