Three teenagers were driving down the road, reaching speeds of 123 mph. They sped along at high speeds for several minutes, before they running off the road at approximately 113 mph, and crashing into a tree. Tragically, their car burst into flames, and all three boys died.  Shortly before the crash, one of the boys had opened Snapchat, a smartphone application, to document how fast they were going. To keep its users engaged, Snapchat rewards users with “trophies”, “streaks”, and “social recognitions” based on the snaps they send. The app, among other things, permits users to superimpose a “filter” over the photos or videos that they capture. Plaintiffs used one of these filters – the “Speed Filter” – minutes before the fatal accident. Many of Snapchat’s users suspect, if not believe, that Snapchat will reward them for recording a 100-mph or faster snap using the Speed Filter. According to plaintiffs, this is a game for Snap and many of its users.  According to the complaint, Snapchat knew or should have known that its users believed that such a reward system existed and that the Speed Filter was therefore incentivizing young drivers to drive at dangerous speeds.  Indeed, the Parents allege that there had been: a series of news articles about this phenomenon; an online petition that called on Snapchat to address its role in encouraging dangerous speeding; at least three accidents linked to Snapchat users’ pursuit of high-speed snaps; and at least one other lawsuit against Snap based on these practices. While Snapchat warned its users against using the Speed Filter while driving, these warnings allegedly proved ineffective; and Snap did not remove or restrict access to Snapchat while traveling at dangerous speeds or otherwise properly address the danger it created.

The U.S. Ninth Circuit Court of Appeals held that, because the parents’ claim neither treats Snap as a “publisher or speaker” nor relies on “information provided by another information content provider,” Snap does not enjoy immunity under the Communications Decency Act.

The duty underlying a negligent design claim, the Court held, “differs markedly from the duties of publishers as defined in the CDA. Manufacturers have a specific duty to refrain from designing a product that poses an unreasonable risk of injury or harm to consumers. Meanwhile, entities acting solely as publishers – i.e., those that review material submitted for publication, perhaps edit it for style or technical fluency, and then decide whether to publish it – generally have no similar duty.”

In addition: “Internet companies remain on the hook when they create or develop their own internet content. And they also may face liability to the extent they are responsible in part, for the creation or the development of’ the offending content on the internet….  Snap indisputably designed Snapchat’s reward system and Speed Filter and made those aspects of Snapchat available to users through the internet….

“To sum up, even if Snap is acting as a publisher in releasing Snapchat and its various features to the public, the Parents’ claim still rests on nothing more than Snap’s ‘own acts’.”

 

Lemmon v. Snap, No.20-55295, 2021 WL 1743576 (9th Cir. May 4, 2021).