Breaking legal barriers seems to be about to change. Where the Communications Act (Section 230) and the First Amendment once invoked an impenetrable veil of social media (SM) liability, that veil has now been punctured; litigation against the major social media hubs has been sanctioned and is ongoing. Targeted in these suits are Alphabet, which operates Google and YouTube; Meta Platforms, which operates Facebook and Instagram; ByteDance, which operates TikTok; and Snap, which operates Snapchat.
In addition to suits alleging damage to the mental health of youngsters, over 140 school districts lodged similar suits, and 42 states plus the District of Columbia recently sued Meta for “youth addiction.” Hundreds of these cases have been consolidated in an MDL, Multi-District Litigation, a federal procedure where one Court addresses the overarching questions of law (although the individual plaintiffs ultimately must prove their own unique harms against each defendant). Last November, Judge Yvonne Gonzales Rogers ruled the MDL lawsuits could proceed, focusing on proprietary algorithms created by the platforms that allegedly engender addictions overtaking young lives while greening the linings of the pockets of the developers.
Flying under the radar are 25 additional suits consolidated under Judge Roger’s MDL, alleging fraud, fraudulent concealment (by omission), and negligent misrepresentation against Mark Zuckerberg, individually. Zuckerberg, a public figure, made public statements to Congress and elsewhere, allegedly intentionally failing to disclose salient facts known only to him and Meta, which, but for this failure, plaintiffs claim they would not have used SM, protecting themselves from this dangerous activity. In other words, had the information been made known, the plaintiffs claim they would have avoided SM’s addictive exposure, which, like the golden goose, forever addict the grabber to the grabbed.
The Fraud:
The specific fraudulent and negligent statements claimed Zuckerberg publicly made include:
- “Facebook’s controls are not just to make people feel safe, it’s actually what people want in the project.
- One of the most important responsibilities we have as a company is to keep people safe and stop anyone from abusing our service.
- You should expect we’ll do everything we can to keep you safe on our services, within the bounds of an encrypted service.
- We do not allow people under the age of 13 to sign up….”
The plaintiffs claim that Zuckerberg, a public figure with direct knowledge of Meta’s safety practices and policy, together with his tight control over Meta’s design, including developing user engagement policies, renders his statements (or rather concealment of information) an actionable pattern of fraudulent concealment and negligent misrepresentation.
Fraudulent concealment and negligent misrepresentation
Federal fraud claims must describe the precise circumstances constituting the fraud, along with the “who, what, where, when, and how” of the misconduct charged. But, since the claim here is concealment by omission, we have no idea precisely what Zuckerberg failed to disclose. But the thorns get thicker. Here, we have plaintiffs from 13 states, many of which have idiosyncrasies that must be addressed.
Overall, state claims for fraud and misrepresentation (deriving from common law tort) all require allegations of:
- A false representation
- The speaker’s knowledge of its falsity
- An intent to defraud
- The hearer’s reasonable reliance on that statement
- Consequence and proximate (i.e., directly related) injury.
The core elements for negligent misrepresentation are similar - with two modifications:
- The speaker’s intent involves inducing the hearer’s reliance on the statement(s)
- The speaker must fail to exercise reasonable care in communicating, which includes breaching a duty of due care to the plaintiffs.
However, there are two types of fraudulent or negligent speech: sins by omission (i.e., failure to disclose) and sins by commission (i.e., “speaking with forked tongue”). In the latter, the duty is of due care; one must speak as a reasonably prudent person under the circumstances.
It is with sins of omission (concealment or failing in forth-comingness) that we find the greatest state variations. Not all states allow the claim. In those that do, there must be a legal duty to disclose the “hidden information.” The 25 plaintiffs build their entire case on this theory, inexplicably omitting attacking Zuckerberg’s public representations of safety that are surely more amenable to criticism. Even in states recognizing the claim – the duty to disclose varies by state [1].
A Special Relationship
The plaintiffs do not allege these basic rubrics; instead, they claim that Zuckerberg’s public persona and superior knowledge create a “confidential” or “special relationship.” To establish this aura, the plaintiffs argue that Zuckerberg postured himself as “the trusted voice of all things Meta,” remaining an “approachable voice to the public” and somehow extrapolating this to creating a special relationship.
The Court didn’t buy it and, in ruling, tossed the claim:
“Plaintiff’s theory would invert the states’ “confidential” or “special” relationship requirements by creating a duty to disclose for any individual recognizable in the public. The Court will not countenance such a novel approach here.”
However, the Court delivered one sliver of a loophole, allowing the plaintiffs to amend their pleading to claim Zuckerberg was acting as a corporate officer, participating in or authorizing Meta’s alleged misrepresentation and failure to disclose in that capacity. I don’t view this as a present. Had the Court totally shuttered their claim, they could have immediately appealed the ruling. But now, their case is on life support; as generally speaking, corporate officers are shielded from liability – and Zuckerberg remains off the appellate radar screen for now. Likely, the case will eventually get there.
More specific claims
Surprisingly, the 25 plaintiffs selected what appears to be the hardest claim to establish against Zuckerberg. As more information is revealed from related lawsuits filed all over the country, Meta’s knowledge, along with their allegedly “historical refusal” to attend to child safety – explicitly contradicted by Zuckerberg’s protestations of safety, is surfacing. This knowledge could be imputed to Zuckerberg. In other words, we could have explicit claims of misrepresentation rather than vague, unspecified omissions, whose specifics we have no idea and Zuckerberg’s protestations of “safety” could be considered careless, imprudent, and possibly fraudulent.
The filing by New Mexico’s attorney general, gives us some examples, with recent documents revealing the potential of
"adult strangers being able to contact children on Instagram, “the sexualization of minors on that platform, and the dangers of its “people you may know” feature that recommends connections between adults and children.”
An internal chat from July of 2020 is illustrative:
“What specifically are we doing for child grooming (something I just heard about that is happening a lot on TikTok)?” asked one employee.
To which co-employee responded:, “Somewhere between zero and negligible. Child safety is an explicit non-goal this half.”
The legal difficulty with lax concern for youngsters’ mental health is that it doesn’t feed into the claim that courts are giving the most credence: SM algorithms and design that create addiction.
More evidence is yet to come. In February, New York City filed suit alleging that children and adolescents are especially susceptible to brain-altering changes engineered by the dopamine releases triggered by likes, etc. The 311-page complaint alleges that “youths are now addicted to defendant’s platforms in droves.” As discovery proceeds, more information is sure to come to light.
These claims are prompting more responsible behavior on the part of the SM platforms: Meta is taking steps to make the platform safer, hiding suggestive posts regarding suicide or self-harm from children who might be inclined to read and be adversely influenced by them. And cases are suggesting more protections. On May 1, Columbia’s Knight First Amendment Institute filed a lawsuit against Meta Platforms seeking to release a tool that enables users to unfollow all the content fed to them by Facebook’s algorithm. [2]
In Georgia, a young adult filed a similar suit against Microsoft and Nintendo, claiming his life has been overtaken by the addictive nature of video games., claiming:
"video game addiction to the defendants’ products has caused him to suffer from brain damage, gamer’s rage, emotional distress, behavioral issues, trouble focusing at school, dropping grades and withdrawal symptoms.”
Some opponents claim that seeking damages against SM platforms and game developers transfers individual responsibility. akin to blaming casinos for gamblers’ addictions. Others argue that, like cigarettes, those creating a product known to have serious dangers are obligated to warn. I don’t foresee SM making those warnings in the near future, but perhaps compelled warnings might surface sooner. Let’s hope.
Advisory: At the very least, the issues raise the problem of mental health. Calling or texting 988 will connect callers with trained mental health counselors.
[1] Arizona, Connecticut, Pennsylvania, and Texas recognize the claim only where the claimant is a party to a business transaction. Georgia allows the claim if the parties are in a “confidential relationship.” In New York, a requirement of a confidential or fiduciary relationship between the parties is necessary, while in Colorado, “ a defendant has a duty to disclose to a plaintiff with whom he or she deals material facts that “in the equity or good conscience [are] to be disclosed.”
[2] “The tool, called Unfollow Everything 2.0, is a browser extension that would let Facebook users unfollow friends, groups and pages and empty their newsfeed — the stream of posts, photos and videos that can keep them scrolling endlessly.”
