In 2017, Matthew Herrick sued the dating app Grindr, after his ex-boyfriend used fake profiles to harass Herrick and send hundreds of strangers to his home.
Herrick's lawyer, Carrie Goldberg, argued Grindr had made a defective product, because the company claimed it couldn't stop the harassment. But the case was thrown out, on the grounds of a longstanding federal law that says online platforms aren't responsible for the content people post.
"We appealed and appealed and lost every appeal," Goldberg said. "And then the case was ultimately dismissed."
That federal law, Section 230 of the Communications Decency Act of 1996, has long been a shield that has stopped many lawsuits against tech companies in their tracks. But in the nine years since Herrick sued Grindr, cracks have started to form.
Courts have become more open to arguments that tech companies can be held accountable for the way they design their products — the argument Goldberg made in the Grindr case.
Decisions about how apps work and are monetized "are things that, in my mind, the platform should be liable for if they get it wrong and injure somebody," Goldberg said.
In 2021, Goldberg sued Omegle, a video chat site accused of enabling child sexual exploitation, and the site shut down after the two sides reached a settlement. The same year, an appeals court said a lawsuit against Snapchat over a speed filter feature involved in deadly car crashes could proceed, rejecting the company's argument that the case should be thrown out on Section 230 grounds. (Snapchat went on to settle the case in 2023.)
The product liability argument takes a chapter from the legal campaign against Big Tobacco in the 1990s, a playbook advocates for tech accountability have embraced.
Last week, that legal strategy scored its highest profile victories yet in two separate jury trials in Los Angeles and New Mexico focused on how social media platforms can harm children.
In LA, the jury found Instagram owner Meta and Google's YouTube deliberately designed their apps to be addictive, contributing to the mental health struggles of a young woman who started using the apps as a child. It awarded her $6 million in damages.
The New Mexico jury ordered Meta to pay the state $375 million for failing to protect young users from child predators. The company could face even more penalties in a second phase of the trial set to start in May, over whether Meta created a public nuisance. New Mexico Attorney General Raúl Torrez has said he will also ask the court to force Meta to change its apps to make them safer.
"This is the dawn of a new era, with people finally getting to hold tech platforms responsible for the harms they cause," Goldberg said.
Chatbots, gambling apps, video games could be next
Sarah Gardner was outside the courtroom in downtown LA when that verdict came down. She leads the Heat Initiative, an advocacy group that focuses on online child safety, and says the recent verdicts mark a turning point for that work.
"It's just created a different playing field than we had even a few months ago," she said.
Meta and Google both plan to appeal the verdicts. Meta says teen mental health can't be linked to a single app, and Google says YouTube isn't social media. Ultimately, many expect the Supreme Court will end up weighing in on this legal theory of liability.
But there are already more similar lawsuits underway. Thousands of related cases against social media platforms are working their way through state and federal courts, while other cases are also being filed against the makers of video games, online gambling apps, and artificial intelligence chatbots.
The credit rating agency Moody's counts more than 4,000 pending cases targeting 166 companies alleging addictive software design.
That includes a lawsuit filed in Massachusetts state court a day after the verdict against Meta and YouTube was delivered that accuses the sports betting sites DraftKings and FanDuel of fostering gambling addiction.
The suit argues the gambling apps are designed to encourage compulsive use, including by targeting users with personalized bonuses and urging them to keep betting.
"We're not just showing that, hey, they spent too much time on this app and it caused them to lose some money," said Jennifer Hoekstra, a partner at the firm Aylstock, Witkin, Kreis & Overholtz who is representing the plaintiff. (The firm was also involved in the social media lawsuit in LA.)
"It's personalized itself to you," Hoekstra said. "If you don't log in for 72 hours, it starts telling you, 'Hey, if you made a bet on this match, you could have made this much money.'"
In a statement, DraftKings said it will quote "vigorously defend against these lawsuits." FanDuel didn't respond to a request for comment.
Advocates hope the early legal victories against the social media platforms will generate momentum outside courtrooms, too, to pass long-stalled tech regulation and to force change in Silicon Valley.
"If you go and look at what really changed the tobacco industry, it wasn't one thing, it was everything together," said Gardner, the child safety advocate. When it comes to tech, she said, the question is: "How do you actually create enough pressure that it will change the business incentives?"
"The only way they're going to change their behavior is if you internalize the cost of safety," said Matthew Bergman of the Social Media Victims Law Center, which represents the plaintiff in the LA trial against Meta and YouTube.
His firm has also sued OpenAI and other makers of AI chatbots, alleging they've contributed to mental health crises and suicides. OpenAI has said the cases are "an incredibly heartbreaking situation," and that it's working with mental health experts to improve how its chatbot responds to signs of mental or emotional distress.
Bergman said while the financial damages levied on Meta and Google so far are small compared to the tech giants' multitrillion dollar valuations, these initial verdicts send a clear message to the tech industry.
"If you grab them by the pocketbook, their hearts and minds will follow," he said.
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