Meta Can't Use Tech Shield To Ax Kids' Platform Addiction Row

A D.C. judge has shot down Meta Platform Inc.’s bid to toss the district’s suit accusing the social media giant of deploying harmful features on Instagram and Facebook that purposely addict children and teens, finding that a longstanding tech liability shield doesn’t apply to the dispute.

D.C. Attorney General Brian Schwalb sued Meta in October, alleging the company violated the District of Columbia Consumer Protection Procedures Act by intentionally manipulating children into overusing its flagship platforms in order to boost its advertising revenue, despite knowing about the harm that such prolonged use has on kids’ physical and mental health.

Meta had argued that Section 230 of the Communications Decency Act, which provides broad immunity to online platforms for content posted by others, defeats the attorney general’s claims that it engaged in unfair trade practices and misled users on the safety of its platforms for children because the allegations seek to treat Meta as a publisher of third-party content. 

But in an order issued Monday denying Meta’s dismissal bid, D.C. Superior Court Associate Judge Neal E. Kravitz rejected this contention, finding that Meta had failed to satisfy the three-part test for establishing Section 230 immunity set forth in the Ninth Circuit’s 2009 decision in Barnes v. Yahoo. 

In order to receive immunity, a company must be a provider of an interactive computer service and be treated by the plaintiff as a publisher or speaker of content posted by a third party. 

While Meta “is unquestionably an interactive computer service provider,” it’s a “potentially close question” as to whether Meta qualifies as a publisher in the present dispute, Judge Kravitz found. However, he said that at this stage of the proceedings, the company had clearly failed to meet the third prong of the test, which requires those seeking Section 230 immunity to establish that a plaintiff is trying to treat the business as a publisher of third-party content.

“Neither the Supreme Court nor the District of Columbia Court of Appeals has had occasion to decide the merits of a dispute over the third prong of the Barnes test or otherwise to interpret the reach of Section 230 immunity,” Judge Kravitz noted. 

“This court thus looks to persuasive case law from other jurisdictions … [which] leads to the conclusion that a social media company satisfies the third prong of the Barnes test and thereby qualifies for immunity under Section 230 only for harms arising from particular third-party content displayed on the company’s platforms,” the judge ruled. 

While Meta had argued that courts have “overwhelmingly found social media companies and other internet content providers categorically immune under Section 230 for their use of algorithms, notifications, and other design features like those at issue in this case,” Judge Kravitz ruled that Meta is reading “far too much into” these decisions. 

Instead, Section 230 should be “properly understood” as a shield for social media companies “based on their role as mere intermediaries between harmful content and persons harmed by it,” meaning that Meta’s own alleged deployment of harmful addictive design features aimed at children and its concealment of its own information that would contradict platform safety claims are not covered by these protections, he concluded. 

The judge also rejected Meta’s contentions that the district’s claims are barred by the First Amendment because they seek to hold the company liable for organizing, disseminating, and exercising editorial judgment over a protected third party and hold its executives accountable for their opinions and confidential Congressional testimony. 

“The district seeks to hold Meta liable for the company’s use of addictive design features aimed at maximizing the amount of time children spend on its social media platforms,” the judge wrote. “The district does not seek to hold Meta liable for any of the content hosted on those platforms or for any message expressed or intended through the use of the design  features at issue.”

Additionally, Meta failed to gain traction with its assertion that the complaint states no plausible claims for relief under the district’s consumer protection law, which shields consumers against false, deceptive and unfair business practices.

Meta argues that the statute doesn’t apply to its conduct because, as the provider of a free service, it doesn’t sell, lease or transfer consumer goods. Therefore, it claims, the district hasn’t alleged the required “substantial injury,” and the disgorgement the attorney general seeks isn’t available under the law. 

But Judge Kravitz concluded that the complaint “plausibly alleges a ‘transfer’ of consumer 

goods and services” under the statute, “even though Meta does not charge a fee for the use of its social media platforms and that the district’s allegations of the ‘devastating effects’ of the company’s design features on its thousands of underage users are sufficient to place this case in the category of unusual cases in which ‘substantial injury’ can be established without proof of economic harm.”

Additionally, Judge Kravitz remained unpersuaded by Meta’s attempt to strike the district’s request for restitution, finding that the relief is “a general term for diverse kinds of recoveries aimed at preventing unjust enrichment of the defendant and measured by the defendant's gains” and that “even if Meta is correct that what the district really seeks here is disgorgement, the court cannot say that the district’s request so clearly falls outside the attorney general’s authority under the CPPA that the request should be stricken as redundant, immaterial, or scandalous.”

In a Monday post on X, formerly known as Twitter, Schwalb highlighted the denial of Meta’s motion to dismiss the district’s lawsuit, which he said accuses the tech giant of “endangering DC youth with intentionally addictive & exploitative social media platforms”

“Meta puts profit over kids’ health & safety,” he wrote. “I look forward to holding them accountable in court.”

Meta couldn’t be reached for comment Tuesday. 

The parties will next come before Judge Kravitz for an initial scheduling conference on Oct. 4, according to his latest order.

D.C. is represented by Adam R. Teitelbaum, Jimmy R. Rock and Kevin J. Vermillion of the Attorney General’s Office. 

Meta is represented by John J. DeBoy, Timothy C. Hester and Christian J. Pistilli of Covington & Burling LLP.

The case is District of Columbia v. Meta Platforms Inc. et al., case number 2023-CAB-6550, in the Superior Court of the District of Columbia. 

–Editing by Adam LoBelia and Marygrace Anderson.