OAKLAND, Calif.—In a decision that could eventually result in major curbs on social media, a three-judge panel of the Ninth U.S. Circuit Court of Appeals in Oakland, Calif., cleared the way for up to 3,000 lawsuits to be filed—and heard by federal district court judges—against big technology firms behind apps like Instagram, Facebook, YouTube, TikTok, Snapchat, and more.
The suits, by parents, school districts, 20 state Attorneys General from both red and blue states, and organizations concerned with mental health, especially the mental health of teens, allege social media platforms tailor their offerings and their algorithms to attract and hold the adolescents, often producing addiction, which can be destructive.
Writing on Aug. 10 for the panel, Appellate Judge Jaqueline Nguyen emphasized the court takes no position on the merits of the cases, which involve Section 230 of the Communications Act of 1934 and the so-called Communications Decency Act of 1996. Section 230 generally holds media firms not liable for the content from third parties—outsiders—which the firms then post.
But they can’t totally hide behind that law and escape responsibility, Judge Nguyen declared.
Meta and Google are the top targets of most of the lawsuits the California appellate judges will let proceed. The firms tried to get both lower courts and the appellate court to toss out all the lawsuits. Both courts said “no.”
“We view claims of ‘a right not to be tried’ with skepticism, if not a jaundiced eye,’” the judge wrote.
The 3,000 lawsuits challenge the social media giants, and challengers have some precedent for winning. State courts in California and especially New Mexico have ruled against the big tech firms.
New Mexico’s courts fined them $567 million for costs of social media’s impact on teenagers there. If upheld after appeals, the money will go to a state fund to help solve teens’ mental health issues.
In March, a Los Angeles jury in local courts decided Meta and Google were negligent in designing their social media platforms. A young woman said the design made her addicted to Instagram and YouTube as a child. Jurors awarded her $6 million.
“More than ever, it’s time for Congress and federal regulators to establish enforceable safeguards for youth online while preserving the right of states to adopt stronger standards, including stronger product safety requirements, transparency obligations, limits on manipulative design practices, and accountability mechanisms for platforms whose business models” harm adolescents, responded J.B. Branch, technology counsel for Public Citizen, after the earlier California ruling.
“The multi-district litigation in the district court involves thousands of lawsuits alleging Meta’s social media platforms Facebook and Instagram ‘encourage addictive behavior, fail to verify users’ ages, encourage adolescents to bypass parental controls, and inadequately safeguard against harmful content and/or intentionally amplify harmful and exploitive content,’” Judge Nguyen explained.
The key distinction, the appellate court said, is that the 3,000 or so cases don’t challenge individual postings which the social media firms pass on to their users, but the way the social media platforms are designed to promote certain postings and downplay others, along with company conduct. In other words, the firms have editorial control over what they post and must be responsible for it.
The lawsuits are in groups: Individual personal injury cases, the Attorneys Generals’ cases, cases from school districts and local governments nationwide, and suits specifically targeting Meta boss Mark Zuckerberg.
The school districts are a separate class of cases from the others. The districts assert social media so affects the kids that it produces disruptive behavior in the classrooms, or worse, and the districts are stuck with the consequences and the costs.
The social media giants have waged an intense, and expensive, lobbying campaign on Capitol Hill to keep their Section 230 protections completely intact and immune from lawsuits. It produced legislation the GOP-run House approved earlier this year.
But with the proliferation of social media, and its heavy use by teens and even pre-teens, the firms’ demand that they deserve such “hands-off” protection from prosecution about its negative impact has run into sharp criticism from privacy groups, states, school districts, parents and lawmakers.
The two senators working on the issue, Richard Blumenthal, D-Conn., a former state Attorney General, and Marsha Blackburn, R-Tenn., now her party’s nominee for an open gubernatorial seat, say the House’s measure, called the Kids Act, has too many loopholes to adequately protect kids.
“Instead of passing a federal standard that will protect America’s children from Big Tech’s greed, the House of Representatives just passed legislation that is a pale imitation of Big Tech accountability.” Blumenthal and Blackburn said.
The House bill’s biggest loophole is that it eliminates a requirement the social media platforms have “a duty of care” to “identify and mitigate risks such as financial exploitation” of their users “and [to] reform design features linked to mental health harms,” a lengthy news analysis explained.
Unions have generally yet to speak out on the use, or misuse, of social media. The one exception is the Communications Workers, and it’s understandable: Social media’s impact on kids draws them away from over-the-air broadcasting, newspapers either in print, online or both and other more traditional media. Broadcasters and newspapers have higher union densities than other industries.
But the newest version of CWA’s cautions about social media, posted in July, are pitched to adults and to social media’s on-the-job impact. CWA makes a key point that bosses can snoop on workers’ social media accounts and use what workers post against them.
“CWA strongly supports the use of social media sites to discuss and advocate for the important issues facing members and working families today. But while these sites offer many advantages, they can also cause serious legal problems if they are not properly used and can lead to complicated legal proceedings as well as potential disciplinary action against employee users,” the union said.
“You have a legal right to express your opinion about various activities that affect your workplace, including the rights protected by” labor law, about discussing wages and working conditions, CWA said. “But you must do so in a manner that does not cause harm to others or give your employer a basis to claim that you have been ‘disloyal.’
“Once you have posted or submitted information on a social network site, it is virtually impossible to retract or control it. Never assume your site is private or that what has been posted will not be disclosed to the company or other employees, including supervisors.”
And make it clear, CWA said, that any opinions you post on social media are strictly your own.
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