COMMENTARY: Waging war on social media - Litigation to save our children

By A. Vince Colella

Historically, trial lawyers have taken on the largest, most profitable and most dangerous companies in the world. Tobacco, guns, opioids – all have wreaked havoc on our society causing illness, disease, injuries, and death. Class action lawsuits against the corporations that manufacture and sell harmful products prove to be expensive, arduous, and at times ... seemingly impossible to win. Yet, trial lawyers have been successful in exposing executive knowledge of the dangers their products pose to our communities and held the companies accountable for the wide-scale devastation they have inflicted on families throughout the United States.

Recently, trial lawyers have set their sights on another industry: The giants of social media. And for good reason. According to data obtained by Meta (Facebook) and Instagram, Molly Russell, a 14-year-old British girl interacted with 2,100 posts (averaging 12 per day) related to suicide, self-harm, and depression over a six-month period, culminating in her death by suicide on September 30, 2017. The story captured hearts and struck fear in parents around the globe that content on social media platforms had contributed — if not caused — Molly’s suicide.

In May of this year, the U.S. Surgeon General Dr. Vivek Murthy released a General Advisory about the effects of social media use on youth mental health. This public statement called for the attention of the American people to an “urgent public health issue” — a mental health crisis — and provided recommendations for how it should be addressed.

[Social Media and Youth Mental Health: The U.S. Surgeon’s General Advisory, May 23, 2023]. The Advisory cited staggering statistics about the universal rise in younger children reporting social media use. According to the report, nearly 40% of children between the ages of 8-12 use social media despite the recommended age of 13. Research further revealed that social media use for youths ages 13-17 reached 95% with a third of them saying they use it “almost constantly.”

The Advisory report also took a deep dive into the potential harms social media platforms pose to children, including poor body image, low self-esteem, eating disorders and depression. Even more extreme examples were found, including exposure to inappropriate and dangerous sexual content and risky “experimental” behavior. While the Advisory did not exalt the potential benefits of social media, it reported that the platforms promote “community and connection,” friendship, support for alternative lifestyles, freedom of expression and feeling of acceptance. There is also broad concern among the scientific community and critical questions remain unanswered, largely due to a lack of transparency from technology companies.

While the Advisory had certainly sounded the alarm for the general public, trial lawyers had already started waging war on social media. In February of this year, some of the nation’s preeminent personal injury firms filed a multi-district “Master Complaint” in the Federal District Court for the Northern District of California. The 287-page filing is packed with all the suspense, deceit, and tragedy of a John Grisham novel. Above all, its graphic unveiling of the industry is a clear indication that they are playing for keeps.

The suit targets the corporate entities of Facebook, Snap Chat, Tik Tok and Google. At its core, it draws attention to algorithms that have been designed by these social media giants to “maximize engagement” of children and entice “compulsive” use akin to that of a drug dealer. TikTok, for example, is alleged to have purposefully designed its “product” to addict kids to its platform by rolling out defective age-verification and parental control measures and engineering algorithms to maximize engagement using automatic content, intermittent variable rewards and defective features including impediments to discontinuing use.

From a legal standpoint, the case against the social media behemoths is premised in common law product liability theories of liability, i.e., design defect and failure to warn. The allegations also include negligence, fraudulent concealment, misrepresentation, unfair trade practices and violations of consumer protection law. But what industry leaders must fear most is that the Master Complaint also features violations under 18 U.S.C §1595, §1591, §2255 and 2252 (federal laws prohibiting child pornography and sexual exploitation of children.) In its case, plaintiffs have alleged universally against all defendants that they knowingly assisted, supported and facilitated the sexual solicitation and exploitation of children to engage in commercial sex acts for financial benefit.

The gravity of these allegations cannot be overstated. According to the complaint, the social media industry has targeted our most uniquely vulnerable as its core market and designed its platforms to attract and addict them into compulsive, self-destructive behavior. Currently, the case is entering the “summary judgment” phase of litigation. One would expect these social media giants to defend their “products” with their lives. However, if they are unsuccessful and are faced with trial by jury, the floodgates may open, resulting in damages well into the billions.
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Vince Colella is a founding partner of Southfield-based personal injury and civil rights law firm Moss & Colella.