Snapchat’s Speed Filter Not Protected by Section 230–Maynard v. Snapchat

Christal McGee allegedly drove recklessly (over 100 mph) to capture her accomplishment in Snapchat’s speed filter. McGee’s car hit Maynard’s car and caused permanent brain damage to someone in the car. The Maynards sued Snapchat, alleging “Snapchat knew that its users could ‘use its service in a manner that might distract them from obeying traffic or safety laws.’ Further, the Maynards allege that Snapchat’s Speed Filter ‘encourages’ dangerous speeding and that the Speed Filter ‘facilitated McGee’s excessive speeding[,]’ which resulted in the crash.” However, the Maynards do not allege that McGee posted a snap displaying the speed filter. The lower court granted Snapchat’s Section 230 motion to dismiss.

The appeals court reversed. The court analyzes the “treat as publisher or speaker” prong and distinguishes Barnes v. Yahoo, Fields v. Twitter (the district court ruling), and Doe v. Backpage because those three cases involved potential liability for posted content. In contrast, “there was no third-party content uploaded to Snapchat at the time of the accident and the Maynards do not seek to hold Snapchat liable for publishing a Snap by a third-party that utilized the Speed Filter. Rather, the Maynards seek to hold Snapchat liable for its own conduct, principally for the creation of the Speed Filter and its failure to warn users that the Speed Filter could encourage speeding and unsafe driving practices.” As a result, the court remands the case for consideration of Snapchat’s other defenses.

I can understand why the court rejected the Section 230 defense. Section 230 isn’t a categorical immunity for every web app design decision. Still, Section 230 would have been appropriate here for two reasons.

First, even if she hadn’t completed the publication, McGee allegedly was preparing the speed filter-motivated content for publication. If she had been generating the speed filter only for her personal bemusement, without any plan or ability to share the content with her audience, then I can see why the claim wouldn’t treat Snapchat as the publisher/speaker of her content. But here, McGee’s creation of the speed filter video only makes sense as a preparatory step towards sharing the video with third parties, and I would extend Section 230’s coverage to preparatory steps in addition to the actual publication of content.

Second, as a practical matter, the complaint will probably fail on prima facie grounds–similar to how the promissory estoppel and failure-to-warn workarounds to Section 230 are not very significant because the plaintiffs usually can’t win those claims on the merits. Though the accident was a terrible tragedy, the odds are good that Snapchat’s role in the accident isn’t covered by the applicable torts. So now the case will consume more litigation cycles only to end up in the same place. One of Section 230’s strengths is moving such cases out of the court system early when they relate to publishing third party content.

I’ll note that this is the second recent state court opinion that denied Section 230 based on interpretations of Section 230’s publisher/speaker prong–the other being the Daniel v. Armslist case from Wisconsin. It’s too early to declare a trend, but I’m keeping an eye on this. Is this a reaction to defendants pushing Section 230 too far? Is this an indicator that state appellate judges will become activist to reach what they consider just results? (In support of the activism hypothesis,  the Daniel v. Armslist judge explicitly repudiated 20 years of precedent; and don’t forget the slightly related Hassell v. Bird appellate court trainwreck). It also makes me wonder about the pros/cons of trying to remove Section 230 cases to federal court if possible…

For those of you looking for a paper topic, here’s one: when does Section 230 provide immunity for offline injuries? The caselaw in this area is jumbled, and it would benefit from some thoughtful treatment.

Case citationMaynard v. Snapchat, Inc., 2018 WL 2676081 (Ga. Ct. App. June 5, 2018)