Courts Assess Product Liability Allegations Against Social Media Giants
Introduction
A slew of cases filed in the past year may have you asking, "is the next product liability plaintiff frontier the land of the Social Media Giants?" The plaintiffs in these cases range from personal injury claimants, to school districts, to states' Attorneys General, and the defendants they seek to hold liable are names we are all familiar with: Meta, Instagram, Snapchat, TikTok, and YouTube, to name just several. Plaintiffs allege a broad set of harms, including but not limited to addiction, depression, and self-harm, particularly in minors, leading to a youth mental health crisis. Here, we examine two recent decisions that provide a mixed picture of whether the Social Media landscape is fruitful or barren for product liability claimants.
In re Coordinated Proceeding Special Title Rule 3.550 Soc. Media Cases, Oct. 13, 2023 Ruling on Defendants' Demurrer, JCCP 5255, Case No. 22STCV21355, 2023 Cal. Super. LEXIS 76992 (L.A. Cty.).
Background: Plaintiffs filed their master complaint on May 16, 2023, asserting thirteen causes of action, including strict liability for design defect and product-based negligent design. Plaintiffs alleged that a design defect exists in the way defendants "harvest user data and use this information to generate and push algorithmically tailored 'feeds' of photos and videos" that are designed to "space out dopamine-triggering rewards with dopamine gaps." According to plaintiffs, this purposeful dopamine release and withholding is structured to cause addiction. Defendants responded with their demurrer on July 14, 2023, requesting that the court dismiss the complaint because the factual allegations were insufficient to support plaintiffs' product liability causes of action. In re Coordinated Proceeding Special Title Rule 3.550 Soc. Media Cases, 2023 Cal. Super. LEXIS 76992, *22.
Holding: On October 13, 2023, the court held that defendants' social media sites are not "products" for the purpose of applying product liability doctrine. Id. at *41. The court identified three primary reasons for the holding: (1) the sites are not tangible products; (2) the "risk-benefit" product liability analysis cannot easily be applied to the sites; and (3) the sites are better categorized as a course of conduct between the defendants and the consumer than products. Id. at *43.
First, regarding the sites not being "products," the court reasoned that defendants' sites are more akin to services than products because users have a direct relationship with the creator of the sites (defendants) and each customer has a unique experience with these sites - unlike a mass-produced, tangible product. Id. at *46-48. The court noted that none of the cases plaintiffs cited conclusively held that software is a product for the purpose of applying product liability law (id. at *48) and also dismissed plaintiffs' arguments that California case law did not require a product to be tangible for the purpose of applying product liability law (id. at *53-54). Second, the court held that California's tests for strict liability design defect - the "risk-benefit" test and the "consumer expectations" test - could not be applied to defendants' social media platforms because the tests assume that the product is a "static thing," which the platforms are not because they "facilitate an interactive experience." Id. at *60. Third, regarding a course of conduct, the court reasoned that the focus of plaintiffs' allegations is on the intent and the conduct of the defendants; namely, that the defendants knew that their algorithms would injure minors, and they still chose to use those algorithms because they wanted to produce more advertising profit. Id. at *62-63. This, the court held, is more appropriately applied to a theory of common law negligence as opposed to product liability. According to the court, "[a]llowing this case to go forward on theories of product liability would be like trying to fit a four-dimensional peg into a three-dimensional hole." Id. at *63.
In re Soc. Media Adolescent Addiction/Personal Inj. Prods. Liab. Litig., Nov. 14, 2023 Order on Defendants' Motions to Dismiss, Case No. 4:22-md-03047, 2023 U.S. Dist. LEXIS 203926 (N.D. Cal.).
Background: In their master amended complaint, filed April 14, 2023, MDL plaintiffs asserted eighteen claims under various state laws, including but not limited to strict liability design defect, strict liability failure to warn, product-based negligent design defect, and product-based negligent failure to warn. Id. at *17. Specific to their design defect claims, plaintiffs allege defects in the form of endless feeds of content, lack of screen time limitations, intermittent variable rewards ("IVR"), and lack of age verification and parent controls, among others. Id. at *20-27. Defendants filed their motion to dismiss on April 17, 2023, arguing that their platforms are not "products," but rather "interactive communication services" that facilitate users to communicate with each other and interact with each other's content. Id. at *72. For purposes of the motion, applicable law was limited to New York and Georgia. Id. at *66.
Holding: Unlike the Judicial Council Coordination Proceedings (JCCP) holding discused above, the MDL court held that certain of plaintiffs' allegations supported their product liability causes of action. In so doing, the court criticized the parties for taking an "all or nothing" approach to arguing whether the platforms qualified as "products" in their briefing. Id. at *71-72. Instead, the court conducted an examination of each individual defect allegation and determined that, when viewed defect-by-defect, many sounded in product liability. Id. at *74, 77. For example, the court held that alleged failure to implement robust age verification and effective parental controls, failure to implement opt-in restrictions for length and frequency of use, and related defect claims were akin to tangible property, comparing age verification and parental controls to the "[m]yriad tangible products [that] contain parental locks or controls to protect young children," such as medicine bottles or televisions, and restrictions of frequency and length of use to "physical timers and alarms." Id. at *87, 90, 92-96. The court also found these purported defects to be "content-agnostic" in that plaintiffs' theories involved the "manner in which users access the apps, not the content they view there," and thus were not excluded from product liability on the ground that they pertain to "ideas, thoughts, or expressive content." Id. at *88.
Conclusion
The holdings' disagreement as to whether Social Media platforms are appropriately classified as "products" for purposes of applying product liability law previews the struggle that courts will face in deciding whether plaintiffs' product liability allegations can withstand scrutiny under Rule 12(b)(6) and underscores the importance of which state's law applies.
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