Litigation Defenders

Section 230 of the Communications Decency Act shields online platforms from civil liability for third-party user content. However, recent social media cases have significantly narrowed this shield by shifting legal focus from third-party content to the negligent design of the platforms themselves.

Plaintiffs are increasingly testing whether social media platforms, applications, algorithms and engagement features can be treated as defective products.

For defense counsel, the threshold question matters – if the alleged injury stems from a dynamic communications service, user-generated content or editorial choices, not a tangible product, traditional products liability doctrine may not fit.

The Product/Service Divide

Products liability law has historically focused on tangible personal property placed into the stream of commerce. Services, ideas, information and expressive content generally fall outside that framework, and courts have been reluctant to treat books, movies, video games and similar expressive works as “products” when the alleged injury flows from content rather than a physical defect.

The New Theory

Plaintiffs are now trying to move social media claims into the products arena by focusing on platform architecture rather than individual posts.

In the pending social media adolescent addiction litigation, for example, plaintiffs challenge algorithms, recommendation systems, infinite scroll, notifications and other engagement features as allegedly addictive and harmful, particularly to minors.

Some courts have allowed feature-based theories to survive early motion practice. In Lemmon v. Snap, Inc., the U.S. Court of Appeals for the Ninth Circuit allowed a negligent-design claim involving Snapchat’s speed filter to proceed past a Section 230 defense because the duty was framed as independent of publishing third-party content. Section 230 of the Communications Act of 1934 provides limited federal immunity to providers and users of interactive computer services.

Core Defense Themes

Defense counsel should pursue precision as a defense at the outset. Is the alleged “product” the app, the algorithm, a feature, the platform architecture, user content or a service? That question can shape the viability of defenses such as strict liability, negligence, Section 230, First Amendment, causation or failure to warn.

• Platform as service, not product. Social media platforms are dynamic communications services, not tangible goods sold off a shelf. They facilitate user-generated content, interaction and information exchange, which are like features that fit more naturally on the service side of the product/service divide.
• Content and editorial activity matter. Many alleged harms arise from third-party content, recommendations, moderation or feed curation. Those theories may implicate Section 230 where ranking or curation is targeted, raising First Amendment concerns.
• Causation remains a major battleground. Even if a design theory survives the pleadings, plaintiffs must still prove that a specific feature caused the alleged injury rather than user behavior, third-party content, device-use patterns, parental controls, preexisting conditions or other individualized factors.
• Warnings and alternative designs are not simple fits. Failure-to-warn and feasible-alternative-design theories become harder to apply when the alleged product is a constantly changing digital service defined by personalization, user inputs and evolving platform functionality.

Conclusion

The law is still developing, and outcomes will vary by jurisdiction, claim and the specific feature at issue. But the traditional products liability framework, rooted in tangible goods, physical defects and the stream of commerce provides strong defense arguments against treating social media platforms as products.

Defense counsel who demands specificity, separate content-based theories from defect theories and develop causation and technical facts early will be best positioned as this area continues to evolve.