On May 4, 2021, a panel of the Ninth Circuit Court of Appeals held in Lemmon v. Snap, Inc., No. 20-55295, that Snap, Inc., the maker of the popular social media app Snapchat, was not protected by the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1) from potential liability in the death of three boys who were killed in a crash while speeding. This is an important decision and a continuing evolution of the potential liability of modern web platforms and similar entities.
In Lemmon, three boys were driving a car at high speed while using the Snapchat “Speed Filter” to show how fast they were going. It is thought that Snapchat rewards a 100mph “snap” using the “Speed Filter” with online trophies and recognitions, although that has not been proven. The boys managed to reach a speed of 123 MPH before careening off the road at 113 MPH and hitting a tree, killing all of them.
The parents of two of the boys sued Snap, contending Snapchat encouraged this kind of reckless behavior and Snap was aware of prior similar incidents but did nothing to fix the problem. Snap argued it was protected under the CDA. The district court agreed with Snap and granted Snap’s 12(b)(6) motion to dismiss, but the Ninth Circuit reversed that decision.
The Ninth Circuit held in this case, two of the three requirements for CDA immunity were not present. Specifically, the court held Snap was not being treated as the “publisher or speaker” because the plaintiffs sought to hold Snap liable for negligent design of the “product” and so the duty involved arose from Snap’s role as the product manufacturer. Although Snap contended the publication of content was the main cause of the problems complained of by the plaintiffs, the court held that was too broad of a reading of the law and Snap was not being held liable in its capacity as a publisher or speaker. The court also held the plaintiffs did not rely on “information provided by another information content provider.” Indeed, the plaintiffs did not fault Snap for publishing the content but rather for designing the app negligently.
As with the decisions I have previously discussed involving Amazon’s liability for defective third-party products on its site, the full ramifications of Lemmon remain to be seen. But it does seem to show a trend of courts moving away from protection under the CDA when the defendant is being sued for torts relating to the design or manufacturing of a product, even if that product is just computer code.
