CDA Does Not Protect Snapchat From Liability for Negligent Design of App

(May 27, 2021)  The Communications Decency Act (“CDA”) does not give Snapchat immunity from a lawsuit claiming the social media provider designed a smartphone application that encouraged three boys to drive at dangerous speeds when they believed they could earn rewards based on their speed, the Ninth Circuit found.

The lawsuit by parents of two of the three boys alleged that Snapchat created “Speed Filter,” an app that superimposed the user’s speed at the moment a photo or video was taken on a smartphone. One of the boys used Speed Filter minutes before the car crashed at 113 MPH into a tree and burst into flames, killing all three.

Snapchat issued rewards to users who posted photos or videos, including trophies and social recognitions. Snapchat did not disclose to users how to earn the rewards. However, the lawsuit said that many users suspected or believed that Snapchat would reward them for “recording a 100-MPH or faster [s]nap” using the Speed Filter.

The lawsuit alleged a cause of action for negligent design of Snapchat and the Snapchat Speed Filter. Snapchat moved to dismiss the case arguing that, because it is an internet service provider, it was immune from liability under the CDA. The trial court agreed, but the Ninth Circuit reversed.

The appellate court agreed that Snapchat was a provider of an interactive computer service under the CDA. However, the appellate court found Snapchat was not a “publisher” of material from a third party but rather was the creator of the material, so the CDA immunity provision did not apply. The opinion noted that “the duty that Snap allegedly violated ‘springs from’ its distinct capacity as a product designer” which is “fully independent” from its role in monitoring or publishing third-party content as contemplated under the CDA.

In reversing and remanding the case, the appellate court concluded that Snapchat “is being sued for the predictable consequences of designing Snapchat in such a way that it allegedly encourages dangerous behavior.”

Carly Lemmon et al v Snap, Inc., d/b/a Snapchat, Inc., Ninth Cir. No. 20-55295 issued May 4, 2021.