Section 230 Preempts Product Design Claims–Lama v. Meta

The court summarizes:

Plaintiff alleges that Defendants failed “to implement a child protective procedure whereby parents, school personnel, and other children[-]responsible persons would be able to protect against online bullying wherein the defendants’ products were foreseeably weaponized to facilitate online bullying,” and that, as a result of this failure, Plaintiff was harmed when he was subjected to hateful and bullying comments that were made about him on the “nrcs.anythings” Instagram account.

The court concludes that this as a surprisingly easy Section 230 dismissal:

ICS Provider. “Courts within the Second Circuit have routinely found that social media websites and online matching services are interactive computer services.” Cites to Mosha v. Facebook, Herrick v. Grindr, Cohen v. Facebook.

Third-Party Content.

Plaintiff’s claims, despite being couched in the terms of products liability, therefore clearly allege that it was the posting (or hosting) of the third-party statements, not Instagram itself, that caused his harm; had those statements not been made on the app, the alleged harm would have never come about…the only defect is that Instagram facilitates users to post such things. Try as he might to make his claims about the way Instagram is designed, his claims are inherently grounded in third-party content posted to the app.

Some other courts go out of their way to reject this type of but-for connection to Section 230, but this court gets it right.

Publisher/Speaker Claims.

the harm that allegedly flows from the third-party statements posted by and to the “nrcs.anythings” account, and the defect that allegedly exists in the design of the Instagram app is related to the policies and procedures regarding requesting the removal of offensive content and/or accounts….

[the plaintiff’s] arguments inescapably return to the ultimate conclusion that Instagram, by some flaw of design, allows users to post content that can be harmful to others (and which was harmful to the minor Plaintiff in this case) and does not have a mechanism to require Defendants to remove such content when reported…

contrary to Plaintiff’s attempts to frame them otherwise, his claims are based on statements made by content-providers other than Defendants and seek to essentially treat Defendants as the publishers of that information based on their failure to prevent or remove such statements

The court then engages in a rare discussion about the 230(d) mandatory disclosures about the availability of filtering tools. The plaintiff argued that Instagram didn’t satisfy 230(d) (which makes sense because it’s totally antiquated, but it’s also an easy thing to toss into a TOS). The court says that 230(d) disclosures only need to be made to “customers,” which the plaintiff didn’t allege he was. The court doesn’t discuss what remedies would flow from a 230(d) violation, but I don’t see how the remedies would reach his claims.

Implications

I look at the “product design” workaround to Section 230 as a type of Rorschach test. Some judges, such as the Neville v. Snap judge, accept the plaintiffs’ product design framing at face value, ignoring the structural problems with the analogy (e.g., when is a service a “product”?) and disregarding but-for and proximate causality of the service’s content publication to any alleged harm. Other judges, like this one and the LW v. Snap judge, cut through the rhetoric and don’t take the pleadaround bait. We’re waiting to see how the appellate courts handle these issues before drawing any stronger conclusions about whether or not the product design workaround represents the end of Section 230.

Case Citation: Lama v. Meta Platforms, Inc., 2024 WL 2021896 (N.D.N.Y. May 6, 2024)