Snapchat Defeats Lawsuit Over User-to-User Harassment–Ziencik v. Snap
[I’m backlogged on several 230 cases. I’ll get to them eventually]
This case involves two Snapchat users who repeatedly received threatening messages from other Snapchat users despite the victims’ efforts to block the perpetrators. A victim flagged messages for Snapchat, allegedly to no effect, and law enforcement may have felt like Snapchat ghosted them and then dragged its feet in replying. However, Snapchat eventually turned over the perpetrators’ identities to law enforcement in both cases. The victims still think Snapchat should have used its magic wand to prevent third parties’ anti-social conduct. The court disagrees.
The victims sued Snapchat for SIXTEEN causes of action: “strict products liability (counts 1-3); breach of implied and express warranties (counts 4-5); negligence (counts 6-9); intentional and negligent infliction of emotional distress (counts 10-11); violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 Pa. Stat. § 201-1 et seq. (count 12); negligent and intentional misrepresentation (counts 13-14); assault (count 15); and unconscionability (count 16).”
This “kitchen sink” pleading should tell you two things. First, the victims reached deep into the plaintiffs’ bag of tricks to try to find SOMETHING that would stick. It’s a standard litigation dilemma: do you advance every possible claim that is remotely possible, or do you focus the claims on just the strongest ones so you don’t dilute or distract from those with tenuous claims? Obviously, these plaintiffs chose the former. Also, this is a preview of a post-230 world, where defendants will have to litigate each and every cause of action individually rather than simply ensure that they qualify for Section 230. We’re seeing the effects of this in the FOSTA litigation, which produce extremely long (and therefore costly) opinions that often break new precedent because the plaintiffs are pushing claims that historically would have been preempted by 230 and thus have never been analyzed against Internet services. As it turns out, the court categorically sidesteps 230, so Snapchat ends up litigating each claim anyway.
Strict Products Liability
Snapchat’s specific alleged failings: “(1) the inability to contact Defendant to receive a timely response with respect to credible threats of imminent death or injury; and (2) the inability to effectively block messages from a user after that user has sent offensive or threatening messages.” The court responds: “Other courts have rejected the idea that non-tangible objects like apps can be ‘products.’ Indeed, Snapchat is more like a service than a product, and services are not subject to the laws of strict products liability.”
Breach of Warranty
The warranty statutes “govern the sale of ‘goods.’ Although Plaintiffs allege that Bailey Ziencik and Pascale Wasson used Defendant’s Snapchat apps to communicate, Plaintiffs do not allege that they purchased software, rights to software, or anything else that might be considered a ‘good.’
Negligence
Plaintiffs assert that by creating “its internet-accessible ‘App’ without adequate user safety measures to block threatening messages,” Defendant created a risk that third parties could “terrorize the Plaintiffs.”
Defendant’s creation and operation of a communication platform, however, does not by itself create a risk of third-party misuse as a matter of law [cites to Dyroff and Pirozzi] Because Plaintiffs base their claim on Defendant’s creation and operation of the Snapchat platform and do not allege any other facts showing Defendant engaged in risk-causing conduct, the Court concludes that the alleged facts do not give rise to a legal duty on the part of Defendant to protect Plaintiffs from the conduct of third parties on its platform.
Notice that the court doesn’t rely on Section 230 for this conclusion, though it the “safety measures” all relate to third-party content.
Also unsuccessful was the claim that Snapchat was too slow in responding to law enforcement. Snapchat puts out a “Law Enforcement Guide,” but the guide didn’t specify any turnaround time.
IIED
The court says Snapchat’s conduct, “especially as compared with the conduct of the sender of the messages, is not so outrageous or extreme as to be ‘utterly intolerable in a civilized community.'”
Misrepresentations
The plaintiffs claim Snapchat falsely advertised procedures to report threats. The court says the victims indeed used such systems.
The plaintiffs claim Snapchat falsely advertised it works with law enforcement. The court says Snapchat did comply with the law enforcement disclosure requests. Snapchat’s alleged slowness doesn’t make its claims false.
Section 230
With respect to Section 230(c)(1), the court sets up Snapchat’s eligibility for the defense, but then curiously leaves it hanging. It concludes the section: “Plaintiffs assert that none of their claims seek to treat Defendant as a publisher or speaker of these messages. It is against this backdrop that the Court considers.” Section 230 surely casts a shadow over this case, but the court did not hold that Snapchat qualified for Section 230 with respect to any of the claims. Did Section 230 nevertheless put its thumb on the scale in the background? Or did the court show that the case failed on the prima facie elements, so Section 230 wasn’t necessary to rule for Snapchat? Either way, this case is another example of how it’s easy to incorrectly blame Section 230 for enabling online harms, even though default law doesn’t apply at all.
Implications
This case grazes key aspects of Internet exceptionalism. The tort claims turn on the fact that an Internet service isn’t a physical “product,” and the warranty claims similarly turn on the fact that an Internet service isn’t a physical “good.” These kinds of binary gatekeeping principles are critical to efficient legal doctrines, but I could see why plaintiffs might feel they sidestep foundational policy issues, i.e., why shouldn’t Snapchat follow the same rules as offline offerings? To me, that’s the wrong question. Snapchat is a speech venue, so it’s infused with free speech considerations that aren’t in play with typical “products” and “goods.”
I was struck by how much this case resembled the seminal Section 230 case, Zeran v. AOL. That case also involved an unstoppable online harassment/attack where AOL similarly was allegedly derelict in its dealings with law enforcement. We’re still litigating the same basic fact patterns more than a quarter-century later. And the same outcome.
It’s worth reiterating that both victims in this case successfully engaged with law enforcement to investigate the perpetrators. This is how the system should work. Snapchat should try to curb anti-social conduct, but some problems on the site nevertheless are best handled by law enforcement to deter or prosecute crimes.
Case Citation: Ziencik v. Snap, Inc., 2023 U.S. Dist. LEXIS 19766 (C.D. Cal. Feb. 3, 2023)