So harmful? First child trial against Facebook and YouTube starts in LA

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How much blame do social media operators bear for the suffering of children and their environment? Do they intentionally build in features that make children addicted? What responsibility do they bear for the selection of content presented to children? Such questions are to be decided by courts and juries in the USA. Over a thousand lawsuits are pending, mostly from children, their (surviving) parents, or school administrations. In addition, the majority of US states are filing lawsuits. Regularly sued are Alphabet/Google/YouTube, Bytedance/TikTok, Meta Platforms/Facebook/Instagram, and Snapchat operator Snap. In California, a first trial is now entering the courtroom phase.

Alphabet, along with Google and YouTube, as well as Facebook, must face the accusations of a 19-year-old identified as K.G.M. Snap, and TikTok have settled out of the affair. How much they paid and whether they promised changes is strictly confidential. After all, they don't want it to get around, as over a thousand other lawsuits are still pending.

Through their settlements, Snapchat and TikTok have gained an advantage: they can watch how YouTube and Facebook fare in court and observe what resonates well with the juries and what doesn't. At the same time, they can refrain from making statements that could otherwise be held against them in later proceedings.

Test Case KGM

Gaining insight is officially the purpose of this first trial. Because so many lawsuits are pending, they are bundled. In federal courts, this is called MDL (Multi-District Litigation); in Californian courts, JCCP (Judicial Council Coordination Proceedings). The Superior Court of Los Angeles County was chosen, which consolidates numerous lawsuits into one file: in court English, it is called Christina Arlington Smith individually and as successor-interest to Lalani Walton, deceased, et al v Tiktok et al (Case No. 22STCV 2135, JCCP5255). “et al” is a Latin abbreviation and stands for “and others” on both sides.

It is impossible for all lawsuits to be heard in court eventually. By then, many of the children would be retired. The court in LA has selected three different cases from the many tragic ones for actual jury trials: KGM, RKC, and Moore. The settlement negotiations for the many other lawsuits will later be based on these verdicts. Therefore, a lot is at stake for the sued data corporations in the three trials. Jury selection in Los Angeles began on Tuesday and will last at least until Thursday.

KGM states that she has been using YouTube since the age of six and Instagram since the age of eleven. She accuses the operators of causing her severe psychological damage, particularly through features like infinite scroll and autoplay videos. The consequences were anxiety, depression, self-harm, and suicidal ideation.

Platforms Should Improve

She is not only demanding damages and punitive damages for herself and her family, which are intended to pressure social networks into making changes, but also prominent warnings on the platforms themselves. These are intended to address the children's parents. KGM's mother testified that she would have restricted her daughter's usage if there had been appropriate warnings. The defendants deny the allegations. In fact, they claim to pay special attention to child protection and to take numerous measures.

The data corporations tried in vain to nip KGM's lawsuit in the bud. One argument was that the mother had not read the terms of service at all, so she would not have noticed the requested warnings. Of course, KGM is not asking for more fine print but for prominent pop-ups that cannot be missed. Bytedance argued (before the settlement) that KGM was already psychologically damaged before she started using TikTok.

Another argument was that the social networks, rather than bullying classmates and family difficulties, were responsible for the girl's suffering. And legally, the lawsuits were inadmissible anyway. In fact, US federal law in Section 230 grants immunity to website operators for content that they do not provide themselves but is posted by third parties (with exceptions that are not relevant here). The allegations made were all closely and inseparably related to such content. Only in certain cases are operators liable for the selection of third-party content they present to their users.

Section 230(c)(1)​

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.

Difficult Evidence

However, the judge rejected all motions for a quick dismissal: KGM had provided sufficient evidence to show that the damage was caused by the design of the platforms, regardless of their specific content.

This is likely where the young woman's lawyers will focus. It is particularly challenging that they not only have to convince the jury that it was indeed Facebook's and YouTube's features that harmed the client. And, if possible, that the corporations knew about the harmfulness. Furthermore, the evidence must demonstrate which platform contributed to which harm and to what extent.

Note: In Germany, you can find help and support for problems of all kinds, including questions about suicide and bullying, at telefonseelsorge.de and by phone at 0800 1110111. The number against sorrow (children's and youth hotline) is 116 111. In Austria, there are also free support services, including specifically for children the children's emergency number 0800 567 567 and Rat auf Draht at 147. The same phone number leads to Pro Juventute in Switzerland.

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