Big Apple vs Big Apps: New York City Sues Tech Titans for Addictive Social Media

Big Apple vs Big Apps: New York City Sues Tech Titans for Addictive Social Media

Are social media websites designed to be so addictive that municipal entities can hold their designers liable? New York City, the City School District of the City of New York, and the New York City Health and Hospitals Corporation have sued twelve major technology entities in California State Court, arguing these companies owe the plaintiffs damages and costs for social media use increasing the burden on the city’s schools and adolescent mental health system.[i] This article focuses on three specific aspects of this litigation: jurisdiction, standing/capacity of municipal entities to sue, and New York law regarding public nuisance and negligence pertaining to addictive or dangerous goods.

 

Jurisdiction: Why Plaintiffs Go Cross-Country to Sue Under Their Own Laws

Suing under New York law in a California state court may be the result of what the legal industry calls “forum shopping.” The plaintiffs may want the benefit of their own laws while avoiding personal jurisdiction issues. The plaintiffs also may have chosen to file in state court to prevent defendants from using federal defenses which have successfully stymied similar cases by individual plaintiffs.

 

New York’s Long Arm Statute

Maintaining a case in New York likely would have created a problem for the plaintiffs. To determine whether a website “transacts any business within the state” per the long-arm statute, New York courts typically look to determine if a website is “interactive,” or permits the exchange of information between the user and site, as opposed to sites that merely display information.[ii] Whether individual defendant websites like Facebook, Snapchat, or Google, each meet this criterion would have been a major point of contention in a New York suit. But as multiple defendants have their principal places of business in California, suing there avoided this issue.[iii]

 

Federal Law: Section 230

Suing in state court also avoided raising issues concerning 47 U.S.C § 230, popularly known as “Section 230” of the Communications Decency Act. This holds: “No provider. . . of an interactive computer service shall be treated as the publish or speaker of any information provided by another information content provider” and that “no cause of action may brought and no lability may be imposed under any [s]tate or local law that is inconsistent with this section.”[iv] A recent case in the federal district of Northern California held Section 230 barred all claims regarding content which the private plaintiffs themselves did not create.[v] However, it also held social media companies were not entitled to this protection for a negligent design claim.[vi] Suing strictly under New York law in state court was likely an attempt by the plaintiffs to bypass this argument.

 

Fighting City Hall: Municipal Capacity to Sue

A governmental entity, which is created by statute, does not have an inherent or common-law right to sue.[vii] This ability must therefore be explicitly created through legislation or a necessary implication of the entity’s responsibilities.[viii] The power to bring a claim may be inferred when an agency has functional responsibility within the zone of interest it protects.[ix] Given the alleged interest in children being less disruptive in school and the costs of increased treatment for mental health contained in the complaint, the plaintiffs are likely to maintain capacity to sue.

 

New York’s Standards for Negligence and Public Nuisance

Under New York law, a government entity may bring an action to abate conduct which endangers or injures the health, safety, or comfort of a considerable number of persons.[x] However, this ability only exists based on a statute deeming specific activities nuisances, or through an implied right that meets analysis similar to that of a private right of action. [xi] As such, public nuisance claims not explicitly designated by statute revolve around two theories of liability: negligence or nuisance based on acts which are unlawful even if performed with due care. [xii] Given that New York State does not yet have a law specifically addressing social media, the public nuisance action will succeed or fail on whether the plaintiffs’ negligence claim is viable.

However, it is unlikely the plaintiffs can succeed under current negligence analysis. A key element of New York’s jurisprudence on negligence is proximate cause, specifically whether the defendant’s relationship with the tortfeasor or plaintiff places them in the best position to protect against the risk of harm.[xiii] A duty of care also exists where there is sufficient authority and ability to control the conduct of third persons through a special relationship between the defendant and the third-persons.[xiv] However, this duty is limited to a known and identifiable group, as opposed to members of the community individually.[xv] This attenuated relationship presents a potential problem for the viability of plaintiffs case.

 

The Issue of Control: Who is the Content Creator?

One issue which differentiates cases concerning gun manufacturers, cigarette manufacturers, and restaurants from the one at bar is that those cases involved entities which indisputably made the goods customers used. However, this degree of control, a key element of negligence, is not clear cut when it comes to online media.

Specifically, the terms of use on social media sites are generally those of a license to reproduce or adapt user-generated content. This is the case with Facebook, whom four of the defendants here are involved with.[xvi] Thus, the very structure of content generation will create new difficulties for the plaintiffs given the degree to which New York negligence law emphasizes the relationship of parties, as site owners can plausibly argue they aren’t the entities creating addictive content but are merely redistributing it.[xvii]

 

Guns, Grease, and Tobacco: New York’s Case History with Allegedly Addictive or Harmful Goods

Even if the defendants’ responsibility for the content is decided in plaintiffs’ favor, New York already has extensive caselaw denying liability where plaintiffs alleged defendants’ goods were addictive and hazardous. These cases included firearms, fast food, and cigarettes. This caselaw suggests the tech defendants need not rebut the plaintiffs’ assertions that social media is addictive or causes harm to prevail, although they are likely to do so.[xviii]

 

Guns: Hamilton (the Litigation)

New York previous addressed these issues when plaintiff Freddie Hamilton and other survivors of illegally obtained handguns sued the gun manufacturers.[xix] When analyzing the negligence claims, the Court of Appeals[xx] held the district court had improperly imposed a duty on the manufacturers “to take reasonable steps at the point of sale…to reduce the possibility that these instruments will fall into the hands of those likely to misuse them.”[xxi] Rather, the high court held that foreseeability does not determine whether a duty exists, merely its scope, rejecting the plaintiffs’ contention that the manufacturer had a special ability to guard against the risks associated with their products.[xxii] Likewise, the high court rejected analogies to a defective or toxic product because the weapons operated as designed.”[xxiii]

This seminal case demonstrates that the plaintiffs here are unlikely to succeed in their litigation even if they establish the dangers of improper social media use are real and foreseeable. Defendants will likely contend their products are not illegal, work as designed, and their relationship to teens in New York is too attenuated to impose a duty. The courts are also likely, following Hamilton, to hold that “courts are not always the best forum to resolve problems associated with every form of commercial activity”[xxiv] given the immense scope individuals effected by social media.

 

Cigarettes: Rose vs. Brown & Williamson Tobacco Corp.

The plaintiffs are also unlikely to prevail in their claims of negligent design without a showing that the modified social media websites would not change the relationship of the average consumer to the product. This has been true even in cigarette cases, where the products are commonly known to be addictive and unhealthful.

A 2008 ruling held  plaintiffs had failed in their claim of negligent design of cigarettes because, notwithstanding the availability of light cigarettes, they could not make out a prima facie case that light cigarettes were a “feasible alternative” to regular cigarettes without presenting evidence of consumer acceptability. [xxv] Rather, the feasibility of a safer design must be weighed relative to a design that reduces risks to the “greatest extent possible while retaining the product’s inherent usefulness.”[xxvi]

This suggests the plaintiffs’ claims against social media companies will fail because the standard against which the social media algorithms will be weighed against is whether their effects outweigh the utility customers get out of them, even if the plaintiffs were to demonstrate their addictive and deleterious effects. Given this, the defendants need not show their product is as safe as possible to avoid liability, only that these platforms are safe enough so that millions of users can enjoy them responsibly.

 

Fast Food: Pelman vs. McDonalds

Like responsibilities regarding design, responsibilities regarding consumption will also likely be a bar to liability in this case. In 2003, a federal suit in New York’s Southern District alleged the McDonald’s corporation intentionally made its food addicting, resulting in plaintiff’s health problems, but these claims were also rejected.[xxvii] Rather, the court found the plaintiff’s negligence claims had failed to allege McDonald’s’ food was so extraordinarily unhealthy that eating it was outside the reasonable contemplation of the consuming public, and that McDonald’s had not masked information necessary to make an informed choice. [xxviii] In other words, a plaintiff asserting negligence for an allegedly addictive good much distinguish the harms of overconsumption, as opposed to regular consumption, by either showing consumption is itself unreasonable, or that the consequences of overconsumption are not common knowledge.[xxix]

This presents a challenge to the instant plaintiffs, as a significant portion of the complaint is dedicated to showing there is a widespread public consensus that social media addiction is real and demonstrably harmful. As such, defendants are likely to argue the known effects of overconsumption of social media are so well known that the consequences were not the result of negligence.

 

Conclusion: Litigation is Unlikely to Succeed Under Current Law, but the Law May Change Soon

This litigation is unlikely to succeed as the law stands, given that there are multiple defenses which will likely unravel the negligence claims on which the case hinges, even without a determination if the websites are addictive and harmful. But this area of law could still become incredibly ripe for Nuclear Verdicts® should the legislature pass a law focused on social media websites, as Governor Kathy Hochul recently proposed.[xxx] This legislation would not only allow the Attorney General of New York to bring suit for addictive websites, but also allow private plaintiffs to sue for damages of up to $5,000 per incident, with attorney’s fees. This would shift the public nuisance analysis away from negligence caselaw by explicitly defining addictive websites as a public nuisance and right of action.

As such, while court watchers should follow this litigation to find if the California court departs from New York caselaw on addictive or dangerous goods, this is unlikely. Rather, those concerned about Nuclear Verdicts® in the social media space should watch to see if New York will follow other states in passing a social media statute, which would open the litigation landscape for renewed allegations of public nuisance against these types of companies in future suits.

 

 

 

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[i]  City of New York, et al. v. Meta Platforms Inc., et al., 24STCV03643, (Cal. Super. Ct. Los Angeles County 2024) available at https://www.nyc.gov/assets/home/downloads/pdf/press-releases/2024/2024-02-14%20City%20of%20New%20York%20Complaint%20021424.pdf.

[ii] Intellect Art Multimedia, Inc., v. Milewski, 24 Misc. 3d 1248(A), 899 N.Y.S.2d 60, 5 (Sup. Ct. 2009).

[iii] City of New York, et al. v. Meta Platforms Inc., et al., 24STCV03643, 47-60 (Cal. Sup. Ct. Los Angeles County 2024).

[iv] In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, WL 1205486,7 (N.D. Cal. Feb. 2, 2024).

[v] Id. at 12-14.

[vi]  Lemmon v. Snap, Inc., 995 F.3d 1085, 1091 (C.A.9Cal.2021).

[vii] Town of Riverhead v. New York State Bd.  Of Real Property Services, 5 N.Y. 2d 36, 42 (2005).

[viii] Id.

[ix] New York State L. Enf’t Officers Union et al. v. City of Geneva, 221 A.D.3d 1456, 1457 (4th Dept. 2023).

[x] City of New York v. Smokes-Spirits.com, Inc., 12 N.Y3d 616, 628 (2009).

[xi] Id.

[xii] Kilmer v. 99 John’s Market Place Inc., 198 N.Y.S. 3d 865, 870 (Sup.  Court, New York County., 2023).

[xiii] Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 572 (2015)

[xiv] Malone v. County of Suffolk, 128 A.D.3d 651, 652 (2d Dept. 2015).

[xv] Id.

[xvi] R. Haig, N Merkl, Who Owns Social Media Content, 4F N.Y. Prac., Com.Litig.  in New York State Courts § 140:29 (5th ed. 2023).

[xvii] See Sokola v. Weinstein, 78 Misc. 3d 842, 846 (Sup.  Court.  New York Cty. Feb. 7, 2023).

[xviii] City of New York, et al. v. Meta Platforms Inc., et al., 24STCV03643, 838-896 (Cal. Sup. Ct. Los Angeles County 2024).  Among other things, the plaintiffs argue that social media use has caused a “disruptive and harmful” environment in the city’s public school, contributes to the dangerous “subway surfing” (filming oneself riding on the outside of a moving subway car) phenomenon and has increased costs through increased use of the city’s mental health system.

[xix] Hamilton et al v. Beretta U.S.A. Corp et al., 96 N.Y.2d 222 (2001).

[xx] New York’s courts follow a different naming convention than most other states.  The Court of Appeals in the highest court in the state.

[xxi] Hamilton, 96 N.Y.2d at 232.

[xxii] Id. at 234.

[xxiii] Id. at 235.

[xxiv] People ex rel. Spitzer v. Sturm, Ruger & Co. Inc., 309 A.D.2d 91, 106 (1st Dept. 2003).

[xxv] Rose v. Brown & Williamson Tobacco Corp., 53 A.D.3d 80, 83 (1st Dept. 2008).

[xxvi] Id. at 82.

[xxvii] Pelman v. McDonald’s Corp., 237 F. Supp. 2d 512 (S.D.N.Y. 2003).

[xxviii] Id. at 522-23.

[xxix] Id. at 522.

[xxx] Press Office of the Governor, Governor Hochul Takes On Youth Mental Health Crisis with Expanded Efforts to Protect the Mental Health of Kids & Teenagers, (Jan. 9, 2024), https://www.governor.ny.gov/news/governor-hochul-takes-youth-mental-health-crisis-expanded-efforts-protect-mental-health-kids; NY State Bill S7694, An Act to Amend the General Business Law, in Relation to Enacting the Stop Addictive Feeds Exploitation (SAFE) for Kids Act Prohibiting the Provision of an Addictive Feed to a Minor, accessed May 29, 2024, https://www.nysenate.gov/legislation/bills/2023/S7694#:~:text=2023%2DS7694%20(ACTIVE)%20%2D%20Summary,platforms%3B%20establishes%20remedies%20and%20penalties.