Breaking Through The Impenetrable Wall of Section 230

By Jacob Davis

            Тhe Ninth Circuit recently put Social Media companies on notice when it held that Section 230 does not immunize a defendant from liability in a products liability claim.[1] The case involves Snap’s speedometer feature, which the plaintiff’s claim is inherently defective and caused a fatal crash.[2] Social Media companies have been able to immunize themselves from liability under the first section of the Communications Decency Act: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.[3]       

            In the Ninth Circuit case, the plaintiff’s claim that the defendant, Snap Inc., is liable under a theory of products liability[4], for the negligent design of its speedometer feature, survived the motion to dismiss.[5] Prior courts have been hesitant to allow claims against Social Media companies to survive the pleadings phase.[6] These other cases have turned on whether the alleged defect is related to the company’s role in editing or removing content.[7]

            The plaintiffs in the Ninth Circuit case attempted a new strategy which intends to hold the defendants liable as a product manufacturer, rather than a publisher or speaker.[8] Under this theory, the Social Media platform is susceptible to liability because the Communications Decency Act does not preclude liability for Social Media companies acting in a product manufacturer capacity.[9]

            Plaintiff’s attorneys can now utilize a theory of products liability as a means to recover against social media giants, and indeed this shift has already begun.[10] These lawsuits go after giants such as TikTok and Facebook, claiming that the sites are addictive.[11] Ultimately, these claims will depend on whether courts are willing to characterize the companies as products manufacturers or publishers.

[1] See Lemmon v. Snap, Inc., 995 F.3d 1085 (9th Cir. 2021)

[2] Id.

[3] 47 U.S.C.S. §230 (Lexis 2022)

[4] See Restatement (Third) of Torts: Prod. Liab., § 2 (Am. L. Inst. 1998).

[5] Lemmon, 995 F.3d, at 1092 (alleging that the speedometer feature on Snapchat is inherently defective because it encouraged the plaintiff and others to drive at dangerous speeds).

[6] See generally, Herrick v. Grindr LLC, 765 Fed. Appx. 586 (2nd Cir. 2019) (granting motion to dismiss when plaintiff alleged a “hook up” application was defectively designed by allowing impersonating profiles); Gonzalez v. Google, Inc., 335 F. Supp. 3d 1156 (N.D. Cal. 2018); aff’d, 2 F.4th 871 (9th Cir. 2021).

[7] Grindr, 765 Fed. Appx. at 588.

[8] Lemmon v. Snap, Inc., No. CV 19-4504-MWF, 2022 U.S. Dist. LEXIS 83399 (C.D. Cal. 2022) (Reviewing the motion to dismiss after the Ninth Circuit reversed and remanded, finding that treating Snap as a product manufacturer will defeat a motion to dismiss).

[9] Id. at 17.

[10] Aleeza Furman, Attorneys Say Products Liability Is Emerging as a Key Tool in Fight to Hold Social Media Companies Accountable, ALM Law (July 14, 2022, 3:43 PM),  

[11] Id.