A federal appeals court on Tuesday ruled that Snapchat should be held legally responsible in a case in which a young man used the app's "speed filter" feature before a fatal crash. Richard Drew/AP
Three young men got into a car in Walworth County, Wisc. in May 2017. They were set on driving at rapid speeds down a long, cornfield-lined road — and sharing their escapade on social media.
As the 17-year-old behind the wheel accelerated to 123 miles per hour, one of the passengers opened Snapchat.
His parents say their son wanted to capture the experience using an app feature — the controversial "speed filter" — that documents real-life speed, hoping for engagement and attention from followers on the messaging app.
It was one of the last things the trio did before the vehicle ran off the road and crashed into a tree, killing all of them.
Was Snapchat partially to blame? The boys' parents think so. And, in a surprise decision on Tuesday, a federal appeals court ordered that the parents should have the right to sue Snap.
The ruling, from a three-judge panel of the 9th U.S. Circuit Court of Appeals, has set off intense debate among legal watchers about the future of a decades-old law that has shielded tech companies from civil lawsuits.
Personal injury lawyer: 'It's a triumphant day'
The boys' parents sued Snap, Inc., the maker of Snapchat, after the tragedy. They alleged that the company "knowingly created a dangerous game" through its filter and bore some responsibility.
The district court responded how courts usually do when a tech platform is sued in a civil lawsuit: by dismissing the case. The judge cited the sweeping immunity social media companies enjoy under Section 230 of the Communications Decency Act.
The law provides legal immunity to tech companies from libel and other civil suits for what people post on sites, regardless of how harmful it may be.
But the appeals court's reversal paves a way around the all-powerful law, saying it doesn't apply because this case is not about what someone posted to Snapchat, but rather the design of the app itself.
The parents allege that Snapchat's speed filter entices young people to drive at astounding speeds. And the federal appears court said Snap should be treated like any other company that makes a product that can lead to injury or harm to consumers.
"Snap indisputably designed Snapchat's reward system and Speed Filter and made those aspects of Snapchat available to users through the Internet," Judge Kim McLane Wardlaw wrote for the court. "This type of claim rests on the premise that manufacturers have a 'duty to exercise due care in supplying products that do not present unreasonable risk of injury or harm to the public.'"
Wardlaw went on to write that "CDA immunity," referring to Section 230, is "unavailable in this case."
Carrie Goldberg, a victims' rights lawyer who specializes in online abuse, brought a similar product liability case against the dating app Grindr but a federal appeals, the 2nd U.S. Circuit of Appeals, rejected it on Section 230 grounds.
To see a different federal appeals court go the opposite way could create an opening for more cases to challenge tech companies over flawed platform design leading to foreseeable harms, she said.
"It's a triumphant day to see that an Internet company can be held responsible for products that are defectively designed," Goldberg said in an interview. "The biggest hurdle in personal injury law is getting in front of a jury, and this could lead to that situation for multi-billion-dollar technology companies."
But legal experts who study online speech were more skeptical, saying it may trigger more lawsuits that try to weaken Section 230, but the chance of succeeding are still slim.
"It invites more attempts to test how narrow the Ninth Circuit thinks Section 230 is, but that might be it," said Jeff Kosseff, a law professor at the U.S. Naval Academy and the author of a book on Section 230. "We know in this case the court has determined that 230 does not apply. I'm sure there are plaintiffs' lawyers out there thinking, 'Well, how about this other type of product flaw?'"
Eric Goldman, a Santa Clara University law professor who also studies technology law, pointed to a similar case against Snap that played out in state courts in Georgia.
In that case, an appeals court found that Snap could be sued for harm caused from the Speed Filter.
But when a trial court re-examined the case, it found that Snap cannot be held liable for someone misusing a product. (The messaging app does apply a "DON'T SNAP AND DRIVE" warning to the filter.)
A spokeswoman for Snap declined to comment.
Increasing the odds of a Supreme Court ruling
The parents' lawsuit now returns to the lower court. If it goes the same way as the Georgia case, Snapchat will dodge any legal responsibility. But if the trial court agrees to hold Snap accountable, that could be significant, Goldman said.
"So we're right now unclear on the impact of this opinion," he said.
The Ninth Circuit has issued many opinions that strongly support technology companies' keeping sweeping legal immunity, he noted, saying now that there is a back-and-forth on Section 230, the legal landscape is complicated.
"They just don't agree with themselves," he said. As a result, there's a lot of whiplash in Ninth Circuit jurisprudence."
And he said in the handful of cases where Section 230 was found not to be a legal shield from a civil lawsuit, lower courts have ultimately sided with the tech companies.
"I don't think that this opinion actually will open up the Pandora's Box of saying, 'You can sue a website for how it's designed under all circumstances,'" Goldman said.
The reason, Goldman says, is because the Ninth Circuit essentially ruled that Snap's being a publisher was not as relevant as the allegation that the messaging app motivated harmful activity.
Yet someone most likely would use Snapchat's speed filter only if they meant to publish their post.
This is important because under Section 230, Snapchat cannot be held liable (or treated as a "publisher or speaker") for what any users post to platforms.
"The Ninth Circuit is walking a really fine line about the distinction between things that people do to generate content and the fact that the content only really matters because it's going to be published," Goldman said.
To Kosseff, the Ninth Circuit's now being split with the Second Circuit on a possible workaround for holding tech companies responsible could make it more likely that the U.S. Supreme Court will weigh in, something at least one justice on the court, Clarence Thomas, has shown an eagerness to do.
"This increases the chances of the Supreme Court hearing a Section 230 case," Kosseff said. "We have a growing divergence in how courts treat these kind of challenges."
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