Meta Facing Multi-District Litigation
This past fall, over two dozen lawsuits in 17 jurisdictions consolidated into an MDL lawsuit against social media companies Meta (parent company of Facebook and Instagram) in the Northern District of California.
MDL stands for Multi-District Litigation, defined as a legal proceeding in federal civil litigation, aimed at reducing the burden on federal district courts, and make litigation more convenient for parties and promote overall efficiency in the courts.
For this particular litigation against Meta, the court opted for consolidation of the various social media lawsuits because, according to the original transfer order, the actions involved common questions of facts and centralization in the Northern District of California will serve the convenience of parties and witnesses and promote the just and efficient conduct for this litigation.
What Are the Allegations?
Plaintiffs in the Meta MDL lawsuit alleges that the social media company has designed their algorithm in a way that knowingly promotes harmful content:
Defendants have intentionally designed their products to maximize users’ screen time, using complex algorithms designed to exploit human psychology and driven by advanced computer algorithms and artificial intelligence available to two of the largest technology companies in the world.
Defendants have progressively modified their products to promote problematic and excessive use that they know threatens the actuation of addictive and self-destructive behavioral patterns.
The complaint goes on to allege that the algorithms in Defendants’ social media products exploit minor users’ diminished decision-making capacity, impulse control, emotional maturity, and psychological resiliency caused by users’ incomplete brain development.
Further, the complaint goes on to state that Meta (Facebook’s parent company) purposefully changed their algorithm in a way that inflammatory content that the new algorithm was feeding to users fueled their return to the platform and led to more engagement, which, in turn, helped Meta sell more of the digital ads that generate most of its revenue.
The complaint further continues: “All told, Meta’s algorithm optimizes for angry, divisive, and polarizing content because it’ll increase its number of users and the time users stay on the platform per viewing session, which hereby increases its appeal to advertisers, thereby increasing its overall value and profitability.”
This past December, the MDL court issued an update setting upcoming deadlines to keep the case moving along.
By February 15, 2023, Plaintiffs will need to file their master complaints, with the order setting parameters that they are to identifying no more than five or six of their strongest claims each.
On February 28, 2023, parties shall file a joint proposed short form complaint and implementation order with any disputed issues clearly designated.
Later this spring, Defendants have until April 17 to file their first motion to dismiss.
Plaintiffs get their chance to file their opposite to the motion to dismiss by June 1 with a June 30 deadline for Meta to file their reply briefs.
Particularly interesting in the order is the court specifically referencing Section 230.
Section 230 is a Provision of the Communication Decency Act passed in the infant days of the internet, 1996. The language of the act states that, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230).
Essentially what this means is that social media companies are not on the hook for the content published by its users.
Because Section 230 acts as a legal shield for social media companies, the harms that come from social media use and social media addiction proceed without the social media companies harboring any responsibility.
However, this MDL suit is part of a new wave of lawsuits that are taking a very different approach to holding social media websites accountable for the harms that come from using their platform: they are claiming that their algorithms are in fact a product, and therefore, this becomes a product liability issue, not a free speech issue.
The order reads: “The Court does not believe that a motion focused on Section 230 and First Amendment defenses is efficient prior to the pending issues before the Supreme Court.”
While of course it’s too early to make a prediction how the court is going to rule, the court is at least making it clear to Defendants that trying to use the shield of 230 is perhaps not the best avenue.
The order again references Section 230, as Defendants indicated that no discovery should occur in light of section 230 immunity.
The court had this to say in response: “The Court has noted the objection and is not persuaded given the extremely limited productions the Court is contemplating. Given the Supreme Court’s decision to review the scope of Section 230 immunity, it is not clear that Section 230 would act to bar any and all discovery.”
To date, the court has agreed to transfer another 60 actions into the MDL, which have a requirement that they be single-plaintiff cases only.
Only time will tell how this case will play out, but all eyes are on the Northern District of California to see where the courts will stand on this groundbreaking lawsuit.
Google Supreme Court Update
The Northern District of California is not the only court in the U.S. reconsidering how social media companies are to be held accountable.
The case of Gonzales v. Google is trying to tackle the Section 230 head-on as the case has been agreed to be heard by the Supreme Court.
Recently, Republican senators, former national security officials, and the state of Texas have filed separate amicus curiae briefs in Texas urging the Supreme Court to back a narrow interpretation of Section 230 that would no longer protect websites from being sued for the content they recommend.
Following in their steps, a similar brief by the Department of Justice’s Acting Solicitor General Brian Fletcher suggests to the Supreme Court that they should vacate an appeals court ruling that found Section 230 of the Communications Decency Act protected Google from being liable under U.S. antiterrorism law.
The brief pointedly has the following Question Presented to the court: Whether 47 U.S.C. 230(c)(1), which states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” bars petitioners’ claims alleging that Google LLC violated the Antiterrorism Act of 1990, 18 U.S.C. 2331 et seq., by hosting on its YouTube platform, and providing targeted recommendations for, videos created by a foreign terrorist organization.
Brought by family members of American citizen Nohemi Gonzales, killed in a 2015 terrorist attack while at a café in Paris in which terrorist group ISIS took responsibility for, Gonzales’ family members allege that Google (parent company to YouTube) is liable under the ATA for providing resources and assistance to ISIS through Google’s ownership of the YouTube video-sharing platform.
The support brief led by Fletcher does not take a position on whether Google should be found liable, but instead suggests that the appeals court ruling be vacated and returned to the lower court for review.
The brief also states that while Section 230 would bar the plaintiffs’ claims based on YouTube’s alleged failure to block ISIS videos from its site, “the statute does not bar claims based on YouTube’s alleged targeted recommendations of ISIS content.”
Further, the brief states that Plaintiffs’ allegations regarding YouTube’s use of algorithms and related features to recommend ISIS content require a different analysis- “Because that theory does not ask the court to treat YouTube as a publisher or speaker of content created and posted by others, Section 230(c)(1) protection is not available.”
Google v. Gonzales is scheduled for argument on February 21, 2023. The ruling in Google could impact the Meta MDL case, and dozens of other similar cases, regardless on how the court will rule. We will continue to monitor and update the blog for the latest developments.