A case has started in the US in which a Califonia woman, known as Kelly GM in court, complained how using Meta Platforms’ Instagram and Google’s YouTube as a child affected her mental health.
Commentators have compared the social media addiction trial to the cases in which courts ordered cigarette manufacturers to pay billions in compensation.
The monetary implications are such that two of the social media companies initially included in the lawsuit, Snap and TikTok, opted to pay the plaintiff a settlement rather than face a jury in court.
To understand the issues in the case, one must first understand the law that protects US-based Internet companies from lawsuits and why it has not protected them this time.
The First Amendment to the US Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
This classic example of negative law restricts the government itself from passing laws that impinge on citizens’ rights. If the government should pass such a restrictive law, it has to prove in court that such a law was necessary to advance a governmental interest that inadvertently restricted freedom of expression or free press.
Notably, the First Amendment does not protect the following types of expression: incitement, true threats, defamation, obscenity, child sexual abuse material, fraud and speech integral to criminal conduct.
So, what happens if someone uses social media to engage in any of the expression not protected by the First Amendment?
Section 230 of the US Communications Decency Act states: “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.”
For years, these 16 words have protected social media companies from being held liable or even being sued for the expressive content on their apps.
In their lawsuit, originally filed in California, plaintiffs said that social media companies had created a defective product and they sued under the common law of product liability.
The complainants said that companies deliberately engineered their apps to “unpredictably, space out dopamine-triggering rewards with dopamine gaps”.
Think about the joy you get when someone eventually comments on your WhatsApp status after 50 people have viewed it without leaving a comment.
Plaintiffs argued that social media apps “addict young users by preying on their already-heightened need for social comparison and interpersonal feedback-seeking”.
Here, think about the fake life phenomenon, where some young people will go to a restaurant, take pictures and leave without ordering food just so they can post the pictures on social media and “hunt” for positive reactions.
Plaintiffs said social media “encourages unhealthy, negative social comparisons, which cause body image issues and related mental health disorders.”
They faulted the apps’ filters that “remove blemishes, make bodies and faces appear thinner, and lighten skin-tone.”
While the court found that social media apps are not a product under the common law of product liability, the judges also said that the suit could proceed to trial.
They noted: “Plaintiffs have adequately stated a claim of negligence based on lack of reasonable care in the Defendants’ own conduct from which harm might reasonably be anticipated.”
Thus, while Section 230 does protect social media companies from liability for what is expressed on their apps, the case in California is proceeding under the common law of negligence on the grounds that social media companies did not anticipate the psychological harms that could befall users of their apps.
If they lose, big payouts could spell the end of social media apps as we know them. Stay tuned.
