On May 4, 2021, the Ninth Circuit reversed the district court’s judgment for Snap, Inc., owner of the mobile application Snapchat, in a case brought by the parents of two teenage boys tragically killed in a car accident. The parents claimed that Snap, Inc. caused the death of their sons through its negligent design of Snapchat. They claimed that that their sons were encouraged to drive at dangerously high speeds by a Snapchat filter which purports to show the user’s real-time speed (the “Speed Filter”). The boys in this case drove at speeds reaching 123 miles per hour and eventually fatally crashed into a tree going approximately 113 miles per hour. Shortly before the accident one of the boys opened Snapchat to use the Speed Filter, believing that posting a video of them traveling over 100 m.p.h could result in rewards within the app. See Lemmon v Snap, Inc. (9th Cir. May 4, 2021). Snap claimed immunity under federal law.
The district court dismissed the case, finding that Snap was immune from claims regarding third-party content under the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1). Section 230(c)(1) provides that:
The parties did not dispute that Snap, Inc. was an “interactive computer service” and the district court found that the parents sought to treat Snap, Inc. as a speaker of information provided by another “information content provider,” which is what the CDA prohibits.
The appellate court opinion
The Ninth Circuit reversed, and held that the lawsuit is not about speakers and third-party content, but rather about the actual design of the app.
The appellate court began by discussing the test to determine whether CDA § 230 applied:
Snap thus enjoys CDA immunity only if it is “(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.”
The parties agreed that Snap met the first element, but the appeals court ruled that the parents’ product liability claim did not meet the second element. The court stated:
That Snap allows its users to transmit user-generated content to one another does not detract from the fact that the parents seek to hold Snap liable for its role in violating its distinct duty to design a reasonably safe product. . . The duty to design a reasonably safe product is fully independent of Snap’s role in monitoring or publishing third-party content.
With respect to the third element, the court also found that the parents did not allege that the lawsuit was based on information provided by another content provider. The court stated in a footnote that “we note that the Parents would not be permitted under § 230(c)(1) to fault Snap for publishing other Snapchat user content (e.g., snaps of friends speeding dangerously) that may have incentivized the boys to engage in dangerous behavior.”
The appeals court ultimately viewed the complaint as a negligent design lawsuit where the parents claimed that the product manufacturer, Snap, Inc., negligently designed Snapchat. The negligent design alleged is the interplay between the Speed Filter and Snapchat’s reward system. Snapchat rewards users with “trophies, streaks, and social recognitions” based on their snaps [photos], but Snap does not tell users specifically how to earn these rewards. The parents alleged that Snapchat knew or should have known that the Speed Filter would then entice users to travel at dangerously high speeds to create snaps that might earn rewards. Snapchat did provide warnings against using the Speed Filter while driving, but the complaint alleges that these warnings were ineffective and Snap, Inc. could have done more to prevent the danger created by the app/filter.
The appeals court warned: “Those who use the internet thus continue to face the prospect of liability, even for their “neutral tools,” so long as plaintiffs’ claims do not blame them for the content that third parties generate with those tools.”
The case is now remanded for further proceedings.
Although CDA § 230 has been in the headlines recently and is the subject of Congressional attention, this case may have a more immediate impact on social media platforms and app developers. Platforms and app designers may be protected from having third-party content attributed to them under CDA § 230, but any platform or app that could encourage risky behavior should be reviewed by an experienced products liability attorney.