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Jury trials are not the best way to resolve important issues of public policy, such as how best to protect children from the potential harms of social media. Nor do the facts presented in a single courtroom, or the majority view of one panel of jurors, necessarily provide much predictive power about how other cases might be decided. But a verdict last week that held two tech companies liable for the mental health problems of a user while she was a child should still act as a powerful spur for the social networks to do more on child safety.
At issue in the trial, in state court in Los Angeles, was whether Meta’s Instagram and Google’s YouTube had designed their services to hook the attention of children, ignoring clear warnings that their methods could cause mental harm. The jurors ruled against the companies after nine days of deliberations and by a majority of 10-2. They resisted the urging of the plaintiff’s lawyers to deliver a big penalty and set damages at $6mn, but nonetheless fired a clear warning shot in the first case of its kind to come to trial.
An important point the case established is that the speech rights enjoyed by social media companies do not protect them against liability for designing defective products, though that issue is likely to be taken up on appeal. In its defence, Meta invoked section 230 of the 1996 Communications Decency Act, which absolves the tech platforms of responsibility for the speech of their users, as well as its First Amendment rights to present information as it sees fit. But the jury agreed with the plaintiff’s argument that, by adding features seemingly designed primarily to tie in users, such as infinite scroll and algorithmic recommendations, the companies had lost the right to claim those protections.
Unsurprisingly, the plaintiff’s lawyers sought to compare the social media companies to the tobacco industry, which wilfully buried clear evidence of the health hazards of its products. The facts that came out in court highlighted a mounting correlation between social media use and deteriorating youth mental health, though not the type of proven causation that Big Tobacco sought to suppress.
Claims that the pursuit of profits had made the companies wilfully blind to the wellbeing of their users were countered by arguments that the companies were, in fact, putting users first. Testifying in the case, Meta CEO Mark Zuckerberg was challenged on why Instagram had allowed the use of “beauty filters” designed to make users look more attractive, despite warnings from 18 experts that this could harm some users’ wellbeing. His justification: an aversion to paternalism and a strong desire to let Instagram’s users express themselves. Other juries, presented with similar evidence in a spate of other cases that are waiting to be heard, might reach different conclusions from the one last week.
But the companies need, for a start, to show that they are policing their own rules effectively. Evidence at the trial pointed to some 4mn users on Instagram below its stipulated minimum age of 13. Meta has taken some steps to enhance safety, such as ending its practice of measuring success based on how long it can keep a user on the platform.
Tech companies should not wait to find out whether verdicts pile up against them before doing more to protect young people. Parental worries are mounting, and legal pressure is combining with legislative efforts. Led by Australia, a dozen countries plus the EU and more than 20 US states have now proposed or enacted steps banning minors from social media. For big tech companies facing a simmering “techlash”, ensuring the safety of their customers is not just the right thing to do but part of protecting their own businesses.
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