Section 230 Helps Snapchat Defeat Personal Injury Claim Due to ‘Speed Filter’–Maynard v. McGee

Snapchat (a/k/a “Snap,” though I can’t say that name without thinking first of this and this) has a “speed filter,” an app that tracks users’ speed. Complaints emerged online that the filter motivated Snapchat users to drive recklessly. The complaint alleges Christal McGee was driving too fast because she wanted to use the speed filter to post a video. The complaint further alleges that “while McGee was distracted and on her phone,” she collided with Wentworth Maynard’s car at 107 MPH and caused permanent brain damage.

The plaintiffs sued Snapchat for negligence on the theory that the speed filter encouraged McGee’s reckless behavior. The lawsuit is not based on Snapchat’s publication of the video because McGee never actually got that far. The complaint does say that McGee was using Snapchat at or around the time of the accident.

The court (in an opinion apparently drafted by defense counsel) says Section 230 is a robust immunity and doubts should be resolved in favor of immunity, citing the binding precedent Internet Brands v. Jape. The opinion then applies Section 230 to the negligence claim despite McGee’s non-publication. The opinion treat Snapchat’s publication OF ITS PRODUCT FEATURE as the immunized editorial choice. This makes Snapchat’s knowledge about possible reckless behavior of users is irrelevant to the Section 230 analysis because that’s just part of Snapchat’s editorial discretion. The court then cites the First Circuit’s Doe v. Backpage ruling for the proposition that “the structure and content of the Snapchat applications, and decisions regarding ‘the structure and operation of [a] website’ and ‘choices about what content can appear on the website and in what form’ also are protected by the CDA immunity.” Thus, the court grants Snapchat’s motion to dismiss.

I imagine that the judge, working independently, might have drafted this opinion differently than defense counsel did. The opinion uses some slick drafting to make the dubious connection between Section 230 and a product feature that wasn’t actually used to publish third party content. Nevertheless, I think this opinion’s result is consistent with Section 230’s immunity for offline injuries caused by third parties, including the Fifth Circuit’s Doe v. MySpace ruling, the California appellate court’s Doe II v. MySpace ruling (both involving offline sexual assaults by people who met on MySpace), the Witkoff v. Topix ruling on a drug overdose attributable to drugs bought via the site, and the Saporano v. Grindr ruling that having sex with an underage kid isn’t the online service’s fault even if the service said it was adults-only. Plus, this ruling reinforces the significance of the First Circuit’s Doe v. Backpage ruling, showing how Section 230’s protection for “decisions in structuring its website and posting requirements” helps defendants win a wide range of cases.

A countervailing thread of Section 230 offline-injury cases comes from the “failure to warn” cases, including the Ninth Circuit’s Doe 14 v. Internet Brands and Beckerman v. rulings. Those rulings don’t help the car crash victim here because Snapchat never had the opportunity to warn him. In contrast, if not properly warned about the risks of injury, Snapchat users of the speed filter (in this case, McGee) might have a failure to warn claim that would get around Section 230 (but that claim would almost certainly be doomed for other reasons).

This lawsuit reminds me a little of the growing number of lawsuits against Apple for injuries caused by texting while driving. It appears that cellphone-related technology providers are the new “hot” defendants for victims of car crashes. Vendors of cellphone-related technologies have an ethical obligation to contemplate how they can discourage misuse while driving and help keep everyone safe, but the expansion of legal doctrines to treat these technology providers as financial guarantors of the resulting injuries would be a very troubling outcome for all of us.

Case citation: Maynard v. McGee, 16-SV-89 (Ga. State Ct. Jan. 20, 2017). The complaint.