Social media ruling could finally push companies to protect our kids
The tide is finally turning on social media. In just the last two days, two separate juries, in New Mexico and California, have held social media companies accountable for harming kids, for the first time in our history. That’s right, never before has a United States court found social media platforms liable for their harms to children. This is a historic moment.
The verdict out of the trial in Los Angeles is noteworthy because this case was brought using tort law to hold social media companies liable for the mental health harms suffered by an individual plaintiff, referred to as "Kaley" in the trial. The jury found Meta and YouTube guilty for negligence in designing and operating an addictive product that was harmful to kids and for failing to warn users of the harms. Never before has a case like this even reached a trial, much less a guilty verdict.
For over a decade, children and teen victims and parents have suffered myriad harms from social media, like suicide, self-harm, eating disorders, anxiety and depression, but have been unable to get justice. If any other product, like a defective toy or toxic food, were harming kids, parents would have already had their day in court.
Not so for social media. Tech companies have hidden behind the massive immunity shield of a law called Section 230 that says online platforms are not liable for harms from third-party speech that they host, so any suits filed against platforms for harms to kids from social media for years were dismissed outright because of Section 230.
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Not anymore. This tort case took a novel legal approach and focused exclusively on the product design of social media for being addictive and harmful to children — recommendation algorithms, "likes," autoplay, infinite scroll and notifications — regardless of the content.
Their strategy paid off. The jury saw the evidence for what it is. For example, when Facebook co-founder and CEO Mark Zuckerberg took the stand at trial he was asked about his decision to allow beauty filters that mimicked plastic surgery on Instagram after 18 of Meta’s internal experts warned they were harmful to teenage girls and could contribute to body dysmorphia.
He tried to wave it away saying, "I think oftentimes telling people that they can’t express themselves like that is overbearing."
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They saw the internal emails and presentations that said, "the young ones are the best ones," "oh my gosh yall IG is a drug" or "we’re basically pushers." The jury could see plainly that these platforms were designed to be addictive, these companies were knowingly harming kids, and they failed to warn users. As Mark Lanier, the lead attorney for the plaintiff, said in a press conference after the verdict, "We've sent a message with this that you will be held accountable just because of the features alone that drive addiction."
Thousands of other cases are currently waiting in the wings to be tried, 3,000 in the state of California alone, and with this positive first result, the companies will be incentivized to settle these other cases, rather than face trial again. Meta and YouTube and other platforms named in the pending lawsuits, like TikTok and Snapchat, should all get ready to pay up. Take the $6 million in damages awarded in this one verdict and multiply that by thousands. This is the Big Tobacco moment for Big Tech.
Big Tech’s allies and sympathizers are trying to argue that this verdict diminishes the responsibility on parents to raise healthy kids. They cite the plaintiff, as FIRE Executive Vice President Nico Perrino tweeted, "Kaley says she began using YouTube at age 6 and Instagram at age 9 and told the jury she was on social media 'all day long' as a child." He added, "Where were the parents?"
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They are asking the wrong question. The problem is not absentee parents but addictive products without meaningful parental controls or robust age verification. As I explain in my book, "The Tech Exit," social media platforms are actively going over and around parents to reach their kids – they recruit young users and as became clear in this L.A. trial, they don’t effectively age gate their platforms or require any parental consent.
The best outcome for these pending cases is thus not simply massive paydays for victims but a restructuring of the social media companies’ way of doing business. One of the key lawsuits pending, a multi-district litigation by 40 state attorneys general that goes to trial this summer, could do that very thing.
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In 1998, 52 state and territory attorneys general signed the Master Settlement Agreement (MSA) with the four largest tobacco companies in the U.S. to settle dozens of state lawsuits brought to recover billions of dollars in health care costs associated with treating smoking-related illnesses.
That agreement changed the industry forever, prohibiting tobacco from targeting youth in their advertising, banning the use of cartoons (which appeal to children) in advertising or packaging, prohibiting payments to promote tobacco in media, like movies, TV, music and video games, and providing money for the states to fund smoking prevention campaigns and more.
As part of a potential master settlement agreement, the attorneys general could similarly require robust age verification measures to keep underage minors off, parental consent requirements for social media accounts, or even compelling the platforms to voluntarily raise the age for their accounts to 16 years old instead of 13.
A settlement agreement could also require companies to disable certain addictive features for minors under a certain age, like recommendation algorithms, infinite scroll, autoplay, "likes," or other features. Social media doesn’t have to be addictive. This initial positive verdict is significant because it suggests that the pending multi-district litigation could lead to a massive settlement like Big Tobacco that changes the social media industry for good.