Torts

Lawsuit Against Snapchat Encouraging Speeding Can Proceed

The Georgia Court of Appeals rejected Snapchat's federal 47 U.S.C. sec. 230 defense, though Snapchat may still win under Georgia law.

|The Volokh Conspiracy |

From yesterday's Georgia Court of Appeals decision in Maynard v. Snapchat, Inc., the facts as alleged:

[O]n the evening of September 10, 2015, a car accident occurred between the Maynards and Christal McGee. Heather McCarty was a passenger in the backseat of McGee's vehicle at the time of the accident. McCarty's affidavit recounts the events preceding the accident as follows:

"I looked up and noticed that we seemed to be accelerating. I looked in the front, and saw Christal McGee holding her phone. The screen had a speed on it, which was about 80 m.p.h. and climbing. I asked Christal if her phone was keeping up with the speed of the car. Christal said it was. I told her I was pregnant and asked her to slow down. Christal responded and said she was just trying to get the car to 100 m.p.h. to post it on Snapchat. She said 'I'm about to post it.' I began pleading with Christal to slow down. I saw the speed on the phone hit 113 m.p.h. before she let off the gas. Just after I saw the speed of 113 m.p.h., a car pulled out of an apartment complex, and I screamed."

As a result of the accident, Wentworth Maynard sustained permanent brain damage.

Snapchat is an application made for mobile devices that allows users to take temporary photos and videos, also known as "Snaps," and share them with friends. Snapchat creates "filters" that allow users to include captions, drawings, and graphic overlays on a user's photos or videos. One of these filters is a speedometer that shows the speed at which a user is moving and allows for that speed to be superimposed to a Snap before sending it out over the application (the "Speed Filter").

The Maynards allege that McGee was using Snapchat and driving in excess of 100 m.p.h. at the time of the crash. The Maynards do not allege that McGee uploaded or posted a Snap using the Speed Filter before the accident occurred.

The legal claim:

The Maynards brought suit against both McGee and Snapchat. The Maynards allege that Snapchat knew that its users could "use its service in a manner that might distract them from obeying traffic or safety laws." Further, the Maynards allege that Snapchat's Speed Filter "encourages" dangerous speeding and that the Speed Filter "facilitated McGee's excessive speeding[,]" which resulted in the crash. In granting Snapchat's Motion to Dismiss, the trial court concluded that Snapchat is immune to suit under the [Communications Decency Act] because Snapchat was merely the publisher of third-party content, not the creator of content.

The trial court held that Snapchat was immune under 47 U.S.C. sec. 230 (part of the so-called Communications Decency Act). The Court of Appeals explained section 230 this way:

Section 230 of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties: "No provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." … The CDA was enacted by Congress to provide "federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service" …. Ultimately, the use of the CDA is to "protect internet service providers for the display of content created by someone else."

The CDA states that it was enacted to further certain policy objectives, including: ["]to promote the continued development of the Internet and other interactive computer services and other interactive media[,] … to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation[, and] … to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services[."]

This Court has held that "three elements are required for § 230 (c) (1) immunity. First, the defendant must be a provider or user of an interactive computer service. Second, the asserted claims must treat the defendant as a publisher or speaker of [that] information. Third, the challenged communication must be information provided by another information content provider." "[C]ourts have consistently held that § 230 provides a robust immunity, and that all doubts must be resolved in favor of immunity." …

But, the Court of Appeals held, Snapchat wasn't being sued on the theory that it was a publisher or speaker of photos posted at a high speed, but rather that it designed the site in a way that encourages speeding:

In [past cases finding immunity under § 230,] the publication of a third-party user's posts caused the harm, and the claims depended on the content of the posts themselves. In the instant case, on the other hand, there was no third-party content uploaded to Snapchat at the time of the accident and the Maynards do not seek to hold Snapchat liable for publishing a Snap by a third-party that utilized the Speed Filter. Rather, the Maynards seek to hold Snapchat liable for its own conduct, principally for the creation of the Speed Filter and its failure to warn users that the Speed Filter could encourage speeding and unsafe driving practices. Accordingly, we hold that CDA immunity does not apply because there was no third-party user content published.

The Court of Appeals then sent the case back down to the trial court to consider Snapchat's other claims, which were that (1) Snapchat's actions weren't actionable under Georgia negligence law, and (2) the Georgia courts "lack[] personal jurisdiction over Snapchat."

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  1. By the logic of the appeals court the car company can be sued because the speedometer goes above any established speed limit and would cause motivation to speed.

    1. Don’t think so, since the speedometer only reports speed. It doesn’t actively encourage you to not only speed so you can show it off, but use a mobile device while driving to do it.

      1. So you think the Snapchat filter is a cheerleader saying faster faster. Got it.

        All.the filter does is… Report the speed. It also doesn’t say “only for use by drivers.”. Not sure where you get it implies to use mobile when driving and not say…. Being a passenger. In which case someone filming their speedometer would be the same.

        1. Well, in this case the driver was holding the phone, and apparently (based on her comment) motivated by the Snapchat filter to break 100 mph so she could post it.

          I doubt many folks use the Snapchat filter to show the car they’re riding in as a passenger is going the speed limit.

          1. Maybe, maybe not. But lots of people use things for inappropriate things. I’ve heard stories about people getting personal breathalyzers and using them to see who can get the most intoxicated. I wouldn’t say that the maker of the breathalyzer is facilitating or encouraging alcohol poisoning.

            But going back to the speedometer issue, someone could just as easily take a photo of the car’s speedometer. Heck, I think I’ve had friends do that before. There are also plenty of other programs that will register your speed and could be posted with selfies.

          2. The lawsuit isn’t about suing a company because someone used their item inappropriately, it is about active encouragement for inappropriate behavior. Go on youtube and you will find thousands of videos about people blasting past 100 in their cars and filming it, all without the use of Snapchat. Involving Snapchat in this lawsuit is just silly. It wasn’t what encouraged the bad behavior.

            1. Obviously they should be suing YouTube!

    2. I don’t think the appeals court is really opining either way. All they’re saying is that the Communications Decency Act doesn’t apply in this situation (which seems right, since Snapchat itself is the publisher of the filter, not a 3rd party).

    3. Not just the speedometer, but the car itself having the capability to go that fast.

      Snapchat should win as a matter of law. But on a social level I must admit that I don’t mind if social media companies get tagged here and there as they make unprecedented profits by wreaking havoc on the social and moral fabric of society.

      1. What profits? Aside from Facebook, do any of them make money? Snapchat lost $350 million on $255 million in revenue last quarter of 2017. Twitter made its first profit ever at the same time, a whopping $91 million

    4. No, the appeals court was not in a position to adjudicate that claim. They ruled only on the CDA claim and remanded all the remaining claims back to the trial court to decide.

      They certainly did not rule on behalf of the plaintiff suing SnapChat based on this theory.

  2. Why are people such incredible a$$holes? 113mph so you can post a picture on Snapchat? WTF? Is she going to jail?

    1. Charged with a felony in 2016; “causing serious injury by vehicle”, as well as misdemeanor reckless driving, 35+ over limit, and too fast for conditions.

      Can’t find any records of how the trial went/is going, though.

      (Which is kind of odd, since she wasn’t a minor, and it should be public record.)

  3. Ok, then next time someone gets drunk they should sue the breathalyzer manufacturer for making an application that records how drunk they are.

    This ruling is amnother example of why most non-acedemics have such disdain for the law.

    1. If someone made an app to instantly publish breathalyzer results to social media for bragging rights, that app would be a good analogy. As it stands, it’s pretty terrible.

      And what’s this “non-academic” stuff? Lawyers aren’t usually academics. Judges aren’t academics. Congress is not bursting with academics. If you mean “stupid people,” just say so.

      1. Why does instantly publishing make a difference? I’ve seen people with pocket breathalyzers use it as a drinking game. Publishing had nothing to do with it.

        1. Because publication is the mechanism that allegedly encourages harmful behavior, and is not integral to the device. Are you really that simple-minded?

          1. I can use pens and paper to publicize my bad behavior (brag about it). Prepare for pens and paper to cost 15 times as much as they should, to cover the lawsuit lottery!

          2. But a phone can immediately take a picture and post it to social media. Or, if the pocket breathalyzer runs through the phone, you can take a screen shot and post it. Either way, it’s something that can be immediately posted on social media for bragging rights.

            1. So can a cellphone camera photographing the speedometer. If she’d done this with the camera option in a Facebook post, taking a photo of her speedometer, would Facebook be liable?

              No. Same here.

  4. It seems to be a colorable case. Based on the little bit I just read in the OP, I’d find the driver 99.9973% liable, and Snapchat 0.017%. If the damages are, say, $10,000,000, then that would make Snapchat responsible for $17,000.

    Seems about right to me. It does seem to me, foreseeable that low-IQ folks will use this speedometer function to show off how fast (ie, stupidly) they are driving. And–although I have never used Snapchat–I’m guessing that to do this, you need to be using/handling your phone while driving, yes?

    The victim definitely does not want me on her jury. But I’d certainly let the case get to court.

    1. $10M to take care of a brain damaged individual for life is pretty thin.

  5. I wonder if old-fashioned camera companies were ever sued for allowing drivers to photograph their speedometers while they were speeding?

    1. For that matter, sue the car companies for allowing people to drive them at such dangerous speeds.

      And sue the beer companies for every time someone drove drunk, or said “hold my beer and watch this.”

      1. How about if the beer company encouraged its patrons to get drunk, video their antics following “Hold my beer and watch this”, and post them on the beer company’s “Most Daring Drinkers” site?

        1. Does Snapchat have a message telling people to drive fast? Does it have a “fastest Snapchat-recorded speed” gallery? No?

  6. Don’t know about anyone else, but I see quite a difference between allowing people to see the speed of their car (which you need to do to obey the law) and encouraging people to record an interesting (read as ‘illegal’) speed and publish it.

    1. How did Snapchat “encourage” people to speed? Snapchat merely failed to hire an army of shrinks and psychologists to predict EVERYTHING that stupid and vain people might do with their application, and failed to hence warn all stupid people everywhere, not to be stupid!

      I bought a lawnmower, and it has NO warning label on it, telling me NOT to use it to give my kid a haircut! Is the lawnmower manufacturer therefore responsible for my bad outcomes when I use the lawnmower to trim my kid’s hair?

      “Deep Pockets” is what this is all about!

      1. I’m just curious, what’s the legitimate use of this? If it’s not to record and post excessive speeds while driving, what are people legitimately using it for? With the personal breathalyzers, there are obvious legitimate uses, and people perverting the use into a drinking game. I just don’t see any legit use for this one. Not saying they should be liable, but it’s not like they’re taking something designed for a wholly different purpose and using it wrongly.

        1. You’re on an aircraft coming in for landing, and you think that the pilot(s) is/are bringing it in too fast. You want to document this in case there’s an accident. That’s just one example.

        2. It’s a sensor provided by the phone and they expose it to the user.

          Might as well sue the photo app for allowing access to the camera sensor, too.

        3. Recording speed while being pulled over, as evidence of a bad speed gun?

          “What possible legitimate reason could anyone have to record their speed?!?!”

          1. Allowing your 12-year-old passenger-son to report to Mom and/or Dad, that asshole brother age 17 is speeding like a demon?

            But wait! If asshole brother age 17 then maims 12-year-old for revenge, is Snapchat responsible for THAT, too? Snapchat has deep pockets, and asshole brother age 17 does NOT, so I suppose “yes” must be the answer!

      2. “I bought a lawnmower, and it has NO warning label on it, telling me NOT to use it to give my kid a haircut! Is the lawnmower manufacturer therefore responsible for my bad outcomes when I use the lawnmower to trim my kid’s hair?”

        The only difference is you would be using the lawnmower for something it wasn’t intended for; which is to mow lawns.

        The driver was using the Speed Filter for its intended purpose–to check speed.

        BTW, I think Snapchat will and should prevail.

        1. She was not using it to check her speed. Her car has a device for that, which is easier and more convenient to use, and probably significantly more reliable. Well, maybe not so reliable after being in a 113 mph crash

        2. Do we know that the Snapchat speed filter has no warning label on it? I have to imagine that there’s some kind of indemnification clause in their terms of use. I can’t find the terms from a quick Google search.

  7. Facts of the case: “Christal responded and said she was just trying to get the car to 100 m.p.h. to post it on Snapchat.”
    Christal is liable for any injury, not Snapchat.

    1. In other words, People (in this case a driver) is responsible for their own actions.

      1. That’s crazy talk.

    2. If we are seeking deep pockets to sue, why not the car company. After all, no car needs to go over 100 miles an hour. That is in excess of all speed limits.

      No ability to go 100, no accident.

      1. During the Drive 55 innumeracy of the 1970s, people suggested governors on cars to limit it to gaswise-efficient speeds. It was rejected for fear of people dying as they could not flee volcanic eruptions and whatnot fast enough.

      2. Cars can be and are driven on racetracks and private property without speed limits.

        (Plus “as fast as the car can go!” becomes the next target.

        American speed limits go up to 85mph, remember.)

  8. I agree that S. 230 doesn’t apply, but the case is still ridiculous.

  9. How is it Snapchat’s fault if their users are morons? I do not see any legal liability for them here. The user was an adult. Knew the laws. Violated it on her own accord (Snapchat had no gun to her head). It is, to me, no different than if I told somebody to “swallow a bullet”, I’d be legally liable if they committed suicide.

  10. There are lots of ways this app could be used that don’t involve illegal and dangerous speeding. There are plenty of situations where you might be moving fast and want to record it. There are also places where you are allowed to drive your car at 100 MPH (though still not a great idea to take pictures while doing so). This case is ridiculous.

    1. Or on the Acela train. That’s where I could see myself being amused by this app.

  11. The result seems right since the application of the statute seems like a huge stretch.

    I am however torn between being appalled at a seemingly frivolous suit and seeing a stupid social media company have to pay for being stupid. Who thought this snapchat feature was a good idea?

    1. Who should care if it is a “good” idea? I’m not looking to social media companies for a litany of good ideas. Stupid ideas are permitted.

      …mind you, I also oppose holding bartenders responsible if somebody drinks too much. Personal responsibility should matter some here.

      1. I think your opinion is confused. The concept of personal responsibility does not imply that only one person is responsible. In fact, saying so really goes against the concept of personal responsibility. If bartender Bob has a regular customer Joe who always gets smashed every night and the bartender consistently observes them driving home drunk, it is not an act of “personal responsibility” for Bob to keep serving Joe night after night, knowing that Joe is going to drive home drunk every time. In other words, the fact that Bob is “personally responsible” for his own bad behavior in driving his car drunk does not imply that Joe should be let off the hook for repeatedly and regularly enabling and facilitating that behavior.

        1. Unless Joe is Bob’s child, Joe’s condition is not Bob’s concern. Bob should not be asked to be Joe’s caretaker. Unless Bob is forcing Joe to drink, Joe is the sole responsible party.

          1. Radical individualism + ipse dixit = Libertarian.

  12. Snapchat encourages speeding in the same way that a speedometer and a camera encourage speeding. I.e. they don’t. I don’t get why this doesn’t get tossed out on that basis alone.

    1. Isn’t this a question of fact? Would you stick with this position if it was a fact that (and I do mean if, this is a hypothetical) Snapchat knew that 95% of its users were using this feature to record themselves driving at speeds over 100 miles per hour to brag about it?

      I am obviously not saying that this is a true fact. I am just asking. Isn’t whether the app encourages a certain behavior a factual question? I mean, it is at least possible, right?

  13. Some Georgia questions. Does Georgia allow Insurance companies to be named in a law suit? As far as I know from a brief Google Georgia is not a joint and several liability state.

  14. Snapchat should win under negligence law. You need more foreseeability than this to make a Weirum v. RKO claim.

  15. Bottom line is you should have to be at least 21 years old to drive. If we can’t trust you to drink a beer we sure as hell don’t want you behind the wheel of a car. There’s a reason you have to be at least 25 to rent a car.

  16. I would think intervening criminal act (the felony speeding) would completely absolve snapshot.

    Although I can also understand them arguing the S230 angle in order to make the case go away as painlessly as possible (I do agree with the CoA that S230 is unavailable in this instance as it is apparently snapshot’s own feature under scrutiny).

  17. I just cannot believe that it is so easy to get the hack snapchat online and it was all we need to get now.

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