Friday, May 7, 2021

No Section 230 Protection

The United States Court of Appeals for the Ninth Circuit has held that section 230 of the Communications Decency act does not bar a suit against Snapchat

According to the Parents’ amended complaint, Jason Davis (age 17), Hunter Morby (age 17), and Landen Brown (age 20) were driving down Cranberry Road in Walworth County, Wisconsin at around 7:00 p.m. on May 28, 2017. Jason sat behind the wheel, Landen occupied the front passenger seat, and Hunter rode in the back seat. At some point during their drive, the boys’ car began to speed as fast as 123 MPH. They sped along at these high speeds for several minutes, before they eventually ran off the road at approximately 113 MPH and crashed into a tree. Tragically, their car burst into flames, and all three boys died.

Shortly before the crash, Landen opened Snapchat, a smartphone application, to document how fast the boys were going. Snapchat is a social media platform that allows its users to take photos or videos (colloquially known as “snaps”) and share them with other Snapchat users. To keep its users engaged, Snapchat rewards them with “trophies, streaks, and social recognitions” based on the snaps they send. Snapchat, however, does not tell its users how to earn these various achievements.

The app also permits its users to superimpose a “filter” over the photos or videos that they capture through Snapchat at the moment they take that photo or video. Landen used one of these filters—the “Speed Filter”—minutes before the fatal accident on May 28, 2017. The Speed Filter enables Snapchat users to “record their real-life speed.”

The danger

Many of Snapchat’s users suspect, if not actually “believe,” that Snapchat will reward them for “recording a 100-MPH or faster [s]nap” using the Speed Filter. According to plaintiffs, “[t]his is a game for Snap and many of its users” with the goal being to reach 100 MPH, take a photo or video with the Speed Filter, “and then share the 100-MPH-Snap on Snapchat.”

Snapchat allegedly knew or should have known, before May 28, 2017, that its users believed that such a reward system existed and that the Speed Filter was therefore incentivizing young drivers to drive at dangerous speeds. Indeed, the Parents allege that there had been: a series of news articles about this phenomenon; an online petition that “called on Snapchat to address its role in encouraging dangerous speeding”; at least three accidents linked to Snapchat users’ pursuit of high-speed snaps; and at least one other lawsuit against Snap based on these practices. While Snapchat warned its users against using the Speed Filter while driving, these warnings allegedly proved ineffective. And, despite all this, “Snap did not remove or restrict access to Snapchat while traveling at dangerous speeds or otherwise properly address the danger it created.

The court looked to product liability law rather than the CDA

The duty underlying such a claim differs markedly from the duties of publishers as defined in the CDA. Manufacturers have a specific duty to refrain from designing a product that poses an unreasonable risk of injury or harm to consumers. See Dan B. Dobbs et al., Dobbs’ Law of Torts § 478 (2d ed., June 2020 Update). Meanwhile, entities acting solely as publishers—i.e., those that “review[] material submitted for publication, perhaps edit[] it for style or technical fluency, and then decide[] whether to publish it,” Barnes, 570 F.3d at 1102—generally have no similar duty. See Dobbs’ Law of Torts § 478.

It is thus apparent that the Parents’ amended complaint does not seek to hold Snap liable for its conduct as a publisher or speaker. Their negligent design lawsuit treats Snap as a products manufacturer, accusing it of negligently designing a product (Snapchat) with a defect (the interplay between Snapchat’s reward system and the Speed Filter). Thus, the duty that Snap allegedly violated “springs from” its distinct capacity as a product designer. 


CDA immunity is also unavailable in this case because the Parents’ negligent design claim does not turn on “information provided by another information content provider.”

The court reversed the District Court order dismissing the case. (Mike Frisch)

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