Section 230 Can't Save Snapchat From Lawsuit Involving Its 'Speed Filter'

[Len]

Section 230 of the CDA gave us the internet we know today. It has allowed hundreds of tech companies and dozens of social media networks to flourish. To some people, however, Section 230 immunity is the internet's villain, not its hero. Recent legislation has created some damaging holes in this essential protection, but it's still insular enough to fend off most legal action in which plaintiffs choose to sue service providers rather than the end user who did/said whatever the plaintiff finds tortiously offensive.

Similar to what has been argued in multiple piracy-related lawsuits, the plaintiff in this lawsuit filed against Snapchat alleged one of the company's photo filters encouraged users to break the law. This lawbreaking had particularly tragic consequences.

Christal McGee allegedly drove recklessly (over 100 mph) to capture her accomplishment in Snapchat’s speed filter. McGee’s car hit Maynard’s car and caused permanent brain damage to someone in the car.

This is where Snapchat comes in. It wasn't that the driver was just using the service when the accident occurred. It's that the driver was using a certain filter when she hit the other vehicle.

The Maynards sued Snapchat, alleging “Snapchat knew that its users could ‘use its service in a manner that might distract them from obeying traffic or safety laws.’ Further, the Maynards allege that Snapchat’s Speed Filter ‘encourages’ dangerous speeding and that the Speed Filter ‘facilitated McGee’s excessive speeding[,]’ which resulted in the crash.”

As Eric Goldman points out, the lawsuit doesn't allege McGee posted a photo using the Speed Filter. It's simply enough the filter existed, according to their arguments. The lower court rejected this argument, granting Snapchat's Section 230 motion to dismiss.

The state appeals court, however, has more sympathy for the Maynards' argument. The plaintiffs aren't trying to hold Snapchat liable for any photo McGee was trying to create at the time of the crash. (Testimony from McGee's passenger says McGee was "trying to get the car to 100 m.p.h." and had the app open on her phone, which was aimed at her speedometer.) Instead, the Maynards want Snapchat to be legally liable simply for creating a filter that might encourage users to take photos of themselves speeding.

The appeals court decides [PDF] that this isn't actually a Section 230 case since the Maynards aren't attempting to hold Snapchat accountable for user-generated content. Instead, it points out Section 230 does not immunize service providers from being held liable for software features they themselves create. Snapchat argued that if it's not a Section 230 case, it should still be dismissed because the Maynards' complaint fails for other reasons. The appeals court disagrees:

Although Snapchat contends that this Court should affirm the trial court’s grant of its motion to dismiss under the right for any reason rationale, because the Maynards allegedly did not properly state negligence claims against Snapchat and that the court lacked personal jurisdiction over Snapchat, these issues were not decided by the trial court below.

Back to the trial court it goes to hear arguments about the points Snapchat raised, but did not fully address in its Section 230-based motion to dismiss. Eric Goldman disagrees with the appeals court's assessment of the Section 230 issue.

First, even if she hadn’t completed the publication, McGee allegedly was preparing the speed filter-motivated content for publication. If she had been generating the speed filter only for her personal bemusement, without any plan or ability to share the content with her audience, then I can see why the claim wouldn’t treat Snapchat as the publisher/speaker of her content. But here, McGee’s creation of the speed filter video only makes sense as a preparatory step towards sharing the video with third parties, and I would extend Section 230’s coverage to preparatory steps in addition to the actual publication of content.

Second, as a practical matter, the complaint will probably fail on prima facie grounds–similar to how the promissory estoppel and failure-to-warn workarounds to Section 230 are not very significant because the plaintiffs usually can’t win those claims on the merits. Though the accident was a terrible tragedy, the odds are good that Snapchat’s role in the accident isn’t covered by the applicable torts. So now the case will consume more litigation cycles only to end up in the same place. One of Section 230’s strengths is moving such cases out of the court system early when they relate to publishing third party content.

The second part may seem cold-hearted but there's not much to like about racking up legal fees just to lose on other issues rather than Section 230 immunity. While the plaintiffs may have a point that Snapchat's Speed Filter (which has since been removed) possibly encouraged lawless and dangerous actions, the app had no power to actually force users to drive recklessly while using the app. It's a bit disingenuous to place all the blame on the end users. It was a very stupid addition by Snapchat. But the driver who caused the accident is at fault, not the filter Snapchat created.