Instagram Immunity: Design Claims and New Challenges
Social media companies have successfully invoked immunity under Section 230 of the Communications Decency Act of 1996 against a variety of civil claims.[1] Section 230 protects, among other things, “interactive computer service” providers from being “treated as the publisher or speaker of any information provided by another information content provider.”[2] This statute has precluded liability against social media platforms for content created by their users.[3]
While traditional publisher liability allowed for liability when a platform exercised editorial control over the content,[4] Section 230 now shields platforms from liability unless plaintiffs can show that the platform “contribute[d] materially” to the allegedly unlawful content[5]
While many cases brought against social media platforms have been dismissed under Section 230, there is a narrow path forward that may allow plaintiffs to overcome the hurdle of Section 230 protections through strategic pleading. In Lemmon v. Snap, Inc., parents of children who died in a high-speed car accident sued Snapchat for negligent design.[6] The children had been using the “Speed Filter,” which allows user to record the speed they are traveling in real time just before the accident.[7] The Ninth Circuit reversed the dismissal of the parents’ action, finding that “internet companies remain on the hook when they create or develop their own internet content” and that this was a “clear example of a claim that simply does not rest on third-party content.”[8]
Meta is facing two new challenges, both attempting to draw on the plaintiffs’ success in Lemmon. In Doe (K.B.) v. Backpage.com LLC, the plaintiff is alleging that her sex trafficker used Instagram to sell her for sex.[9] This conduct involves content of a third-party, her trafficker, but her claims against Meta, which owns Instagram, focus on design features, like the failure to verify user identity.[10] The fate of this case in San Francisco may be cause for concern for Meta, particularly as a Massachusetts case survived a motion to dismiss and rejected Meta’s Section 230 immunity argument.[11] In Commonwealth v. Meta Platforms, Inc., the Commonwealth alleged that Meta purposefully designed Instagram to addict young user and deceived the public.[12] In rejecting Meta’s claim for Section 230 immunity, the court held that the statute neither immunizes Meta’s false statements nor claims regarding the design of Instagram.[13] Pleading focused on the design of the platform has found greater success, but this may not mean that plaintiffs are in the clear. At a hearing regarding federal immunity in Doe (K.B.), the judge noted difficulty reconciling conflicting legal precedent.[14] Meta attorney Kristin Linsley argues that the case falls in line with precedent where the harm was caused by a third party and immunity does not depend on artful pleading. However, it remains to be seen to what extent pleading focused on design of a platform increases liability of Meta and similar platforms.[15]
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