Section 230 Can't Save Snapchat From Lawsuit Involving Its 'Speed Filter'

from the lawsuit-will-just-have-be-dismissed-for-other-reasons-then dept

Section 230 of the CDA gave us the internet we know today. It has allowed hundreds of tech companies and dozens of social media networks to flourish. To some people, however, Section 230 immunity is the internet's villain, not its hero. Recent legislation has created some damaging holes in this essential protection, but it's still insular enough to fend off most legal action in which plaintiffs choose to sue service providers rather than the end user who did/said whatever the plaintiff finds tortiously offensive.

Similar to what has been argued in multiple piracy-related lawsuits, the plaintiff in this lawsuit filed against Snapchat alleged one of the company's photo filters encouraged users to break the law. This lawbreaking had particularly tragic consequences.

Christal McGee allegedly drove recklessly (over 100 mph) to capture her accomplishment in Snapchat’s speed filter. McGee’s car hit Maynard’s car and caused permanent brain damage to someone in the car.

This is where Snapchat comes in. It wasn't that the driver was just using the service when the accident occurred. It's that the driver was using a certain filter when she hit the other vehicle.

The Maynards sued Snapchat, alleging “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.”

As Eric Goldman points out, the lawsuit doesn't allege McGee posted a photo using the Speed Filter. It's simply enough the filter existed, according to their arguments. The lower court rejected this argument, granting Snapchat's Section 230 motion to dismiss.

The state appeals court, however, has more sympathy for the Maynards' argument. The plaintiffs aren't trying to hold Snapchat liable for any photo McGee was trying to create at the time of the crash. (Testimony from McGee's passenger says McGee was "trying to get the car to 100 m.p.h." and had the app open on her phone, which was aimed at her speedometer.) Instead, the Maynards want Snapchat to be legally liable simply for creating a filter that might encourage users to take photos of themselves speeding.

The appeals court decides [PDF] that this isn't actually a Section 230 case since the Maynards aren't attempting to hold Snapchat accountable for user-generated content. Instead, it points out Section 230 does not immunize service providers from being held liable for software features they themselves create. Snapchat argued that if it's not a Section 230 case, it should still be dismissed because the Maynards' complaint fails for other reasons. The appeals court disagrees:

Although Snapchat contends that this Court should affirm the trial court’s grant of its motion to dismiss under the right for any reason rationale, because the Maynards allegedly did not properly state negligence claims against Snapchat and that the court lacked personal jurisdiction over Snapchat, these issues were not decided by the trial court below.

Back to the trial court it goes to hear arguments about the points Snapchat raised, but did not fully address in its Section 230-based motion to dismiss. Eric Goldman disagrees with the appeals court's assessment of the Section 230 issue.

First, even if she hadn’t completed the publication, McGee allegedly was preparing the speed filter-motivated content for publication. If she had been generating the speed filter only for her personal bemusement, without any plan or ability to share the content with her audience, then I can see why the claim wouldn’t treat Snapchat as the publisher/speaker of her content. But here, McGee’s creation of the speed filter video only makes sense as a preparatory step towards sharing the video with third parties, and I would extend Section 230’s coverage to preparatory steps in addition to the actual publication of content.

Second, as a practical matter, the complaint will probably fail on prima facie grounds–similar to how the promissory estoppel and failure-to-warn workarounds to Section 230 are not very significant because the plaintiffs usually can’t win those claims on the merits. Though the accident was a terrible tragedy, the odds are good that Snapchat’s role in the accident isn’t covered by the applicable torts. So now the case will consume more litigation cycles only to end up in the same place. One of Section 230’s strengths is moving such cases out of the court system early when they relate to publishing third party content.

The second part may seem cold-hearted but there's not much to like about racking up legal fees just to lose on other issues rather than Section 230 immunity. While the plaintiffs may have a point that Snapchat's Speed Filter (which has since been removed) possibly encouraged lawless and dangerous actions, the app had no power to actually force users to drive recklessly while using the app. It's a bit disingenuous to place all the blame on the end users. It was a very stupid addition by Snapchat. But the driver who caused the accident is at fault, not the filter Snapchat created.


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  • identicon
    Paul, 18 Jun 2018 @ 1:49pm

    Baseless

    It's not like Snapchat unlocked new filters at 60, 80, 100, and 120 MPH. That would be actual encouragement to speed. This is not.By their same argument, wouldn't every speedometer app be encouraging people to speed? Wouldn't your own car's speedometer be encouraging you to speed?

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 18 Jun 2018 @ 1:53pm

      Re: Baseless

      The lawsuit itself may be baseless. But Snapchat can't invoke 230.
      Suing companies that facilitate stupidity is a big industry.

      reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 18 Jun 2018 @ 2:17pm

      Speedometers

      Wouldn't that be like inferring that a speedometer in a car that goes up to 250mph implies that the car can go that fast, and will, thus, encourage the driver to try getting it there?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Jun 2018 @ 2:23pm

        Re: Speedometers

        You weren't the first one to think that:

        On September 1, 1979 the NHTSA required speedometers to have special emphasis on 55 mph and display no more than a maximum speed of 85 mph. On March 25, 1982 the NHTSA revoked the rule because no "significant safety benefits" could come from maintaining the standard.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jun 2018 @ 2:19pm

      Re: Baseless

      It's not like Snapchat unlocked new filters at 60, 80, 100, and 120 MPH. That would be actual encouragement to speed.

      No, it wouldn't. "Speeding" doesn't mean "going fast", it means "going illegally fast", and there are places where such speeds would be legal (notably racetracks if we're talking about cars; of course there are trains, planes, rockets--what's wrong with encouraging people to ride the TGV?).

      The article never says what this filter actually is. So, what is it? What does it do?

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 18 Jun 2018 @ 5:11pm

        Re: Re: Baseless

        As described in the filing, starting at the bottom of page 2:

        '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").

        That's it. No 'rewards' for speeding, no special effects, it simply lists how fast you're going and attaches that speed to any photo you take with the filter active. To claim that the filter 'encourages' people to speed, as the lawsuit seems to be arguing, is beyond absurd, and hopefully the court tosses it again on those grounds.

        reply to this | link to this | view in chronology ]

        • identicon
          Bruce C., 18 Jun 2018 @ 7:08pm

          The REALLY stupid part...

          Is that there was a passenger. Why was the driver distracted by the app in the first place? The app isn't taking a picture of the car's speedometer (although apparently McGee thought it did because she was trying to get a picture of the speedometer), it's calculating the speed on its own.

          So you're a passenger in a car and the driver says "I'm going to try to hit 100 mph and post it on Snapchat." Do you
          a) tell her not to.
          b) tell her to focus on driving, you'll hold the phone and snap the picture.
          c) let her fiddle with the phone while driving over 90 mph
          d) jump out the window at 90 mph to save time killing yourself.

          Score 3 out of 4 on the stupidity scale for the passenger too.

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 19 Jun 2018 @ 12:15am

            Re: The REALLY stupid part...

            e) Tell them they either put the phone down or it's going out the window, if not now then as soon as the car stops(if the later it's also getting a good hard stomp). If someone wants to be suicidaly stupid they can do it when they don't have good odds of taking me with them.

            Why was the driver distracted by the app in the first place?

            Because they are incredibly selfish and monumentally stupid?

            Score 3 out of 4 on the stupidity scale for the passenger too.

            From the filing I would be surprised if the passenger had any idea beforehand that their (hopefully former) friend was going to do something so insanely stupid and it read as though they didn't have time to really do anything, so not sure how much blame can be laid at their feet.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 19 Jun 2018 @ 9:56am

            Re: The REALLY stupid part...

            The app isn't taking a picture of the car's speedometer

            It takes a picture of whatever you're pointing the camera at, obviously. Apparently she thought it would be amusing to have a picture with the filter speedometer superimposed on her car's speedometer.

            Score 3 out of 4 on the stupidity scale for the passenger too.

            Why? According to the ruling, the passenger chose (a) with an added plea that she was pregnant, and it didn't work. I doubt (b) would have worked (after all, the driver has a better shot of the speedometer than a passenger in the back seat, unless she unbuckles and leans over, in which case she'd be dead instead of alive and able to testify), it makes her an accomplice, and it ensures that the driver is actually going to go that fast. And of course she'd be dead instead of alive if she chose (d).

            The only arguably stupid thing the passenger did is to get in the car in the first place with such an irresponsible person driving.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jun 2018 @ 1:58pm

    *drives wrecklessly over 100 mph*
    *crashes into another motorists vehicle*
    *gets deemed an accident in the media*

    Whoops-a-daisey! No big deal, it was just an accident. No consequences to see here, folks.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 18 Jun 2018 @ 2:03pm

    She is poor, so suing her won't get us paid.
    So we have to sue Snapchat, because they have money.

    I await Snapchat moving to join others to the case.
    If Snapchat is liable, they need to join others who bear as much responsibility as they do.
    The car maker
    The phone maker
    Whoever is responsible for that stretch of road
    The tire maker
    and a bunch of other people a lawyer can dream up.

    Snapchat made a filter.
    Snapchat did not tell her to use it.
    Snapchat did not pop up with a message saying, you're doing 75 at 100 we have an awesome filter.

    While it is tragic, holding a 3rd party responsible for the stupidity of an end user is dumb.

    She caused the incident.
    She broke the law.

    They want us to believe that she NEVER would have done this except for Snapchat making a filter. This means she should never should have been allowed out of the house unsupervised. If something existing is enough to make her do it, she needs to be in a padded room with no outside stimulus allowed in.

    We can't sue gun makers when someone uses their product in an illegal way, yet if they are a rich internet company the prevailing thought is we can sue them. This just leads to more stupid people doing stupid things because in the end it is never their fault if they can claim the rounded rectangles on the screen caused them to rob the bank so Apple is responsible.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 18 Jun 2018 @ 4:25pm

      To be fair...

      Many people went trespassing during the Pokémon Go! craze, even going into military base grounds and hazard zones in order to catch rare Pokés. That's what started the whole thing about declaring certain zones Poké-free, which Nintendo absolutely swore up and down they don't have to do.

      I agree that people need to be regarded as adults and be given rights accordingly, even when we have mounds of evidence they cannot really be so entrusted.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Jun 2018 @ 4:53pm

        Re: To be fair...

        That is true about Pokemon go.

        Pokemon go wasn't created with the intent to get people to break laws by trespassing.

        A speeding filter by name implies you would expect someone is breaking the law to get noticed when they publish actual speeding video and/or pics. The mere exsistance of the filter should not make the company liable. But you still need to question the intent of someone to make it available in the first place.

        From just this article it sounds like the company made a tool but were not telling people to break the law so any misuse of the tool is the user's fault. The company could also be more involved in this than just creating a filter. But that is something for the court to decide.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Jun 2018 @ 7:09pm

          Re: Re: To be fair...

          It's a speed filter, not a speeding filter. If it were a speeding filter, you might have a point. As someone else pointed out, a speed filter is not really different than a speedometer.

          I have a photo of my speedometer pegged on its max reading. If something bad had happened, would GM be liable for putting a speedometer in the car? (For the record, I was actually doing about 35mph in a 35mph zone and my speedometer was broken.)

          reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 19 Jun 2018 @ 1:40am

          Re: Re: To be fair...

          "A speeding filter by name implies you would expect someone is breaking the law"

          Good thing it's not called that then.

          "But you still need to question the intent of someone to make it available in the first place."

          To use for a thousand other uses than filming your dashboard while driving? Hell, if the moron involved even had enough sense to hand the phone to their passenger and ask them to film the same circumstances, the crash probably wouldn't have happened, but stupidity won out.

          "it sounds like the company made a tool but were not telling people to break the law so any misuse of the tool is the user's fault"

          Exactly, there's no accounting for human stupidity. The Snapchat filter would be cool to use on a train goes very fast, or on a ride, or mounted on a bike, or on a zipline, or any number of things that don't require distraction. As with any app, it's down to the person driving the car that they're so dumb they'd rather watch a screen than the road they're hurtling down at speed.

          Same with the rest of these tools and devices. Pokemon Go and GPS apps, as examples, made the fundamental error of presuming the people would be intelligent enough not to climb into restricted areas and/or drive into rivers just because their device was telling them to. But, because some people are apparently so dumb that they'll believe what a screen tells them instead of what is in front of their eyes, they have to start adding restrictions.

          "But that is something for the court to decide."

          Indeed, and I'd hope they make the right decision - that a company can't be held responsible just because a drooling idiot decided to misuse their product.

          reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 18 Jun 2018 @ 2:16pm

    "Section 230 immunity is the ... villain" -- DESTROYING SOCIETY

    Yes, a small portion of the population has benefitted by monetizing privacy, fostering idiocy, and obliterating what used to be common civility. To Techdirt, money is all that ever matters, and corporations have ZERO responsibility.

    But YOU are going to be among those savaged by both old money which desires you quit fouling their planet and the just-now-born who grow up in the anarchy you promote. Enjoy.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 18 Jun 2018 @ 2:21pm

      "monetizing privacy, fostering idiocy, and obliterating civilit"

      If that's all you count as benefits.

      Section 230 has allowed most of us access to an open communication network where we can talk about just about anything.

      I know it's hard to quantify that in a society that only values monetary gain, but for those of us at the bottom, it's pretty awesome, even if it's uncivil or might reveal the underbelly of human culture.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jun 2018 @ 2:46pm

      Re: "Section 230 immunity is the ... villain" -- DESTROYING SOCIETY

      I'm hoping you're in your 90s and not far from sparing us your moronic rants.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 18 Jun 2018 @ 3:11pm

      Re:

      Please provide proof of your claim that Techdirt writers believe in the ethos of “money is all that matters” as well as the necessary citations required for verifying your evidence.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jun 2018 @ 5:19pm

      Re: "Section 230 immunity is the ... internet"

      Glad to hear your nuanced arguments supporting 230, one of the most important regulations on the internet.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 18 Jun 2018 @ 5:01pm

    'Someone else MUST be responsible for my idiocy!'

    Even if the filter did 'encourage' people to speed, she was still the one who did so, choosing to engage in incredibly reckless behavior, forcing another person to pay and pay dearly for her colossal stupidity.

    By all means sue the walking darwin award honorable mention, but going after Snapchat very much makes this come across as a Steve Dallas lawsuit.

    reply to this | link to this | view in chronology ]

  • identicon
    stine, 19 Jun 2018 @ 4:05am

    So?

    How does this relate to the fact that the car's speedometer goes to 120 mph? Surely that's also an invitation to speed since there aren't any roads in the U.S. with limits that high.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jun 2018 @ 6:11am

    The real invitation to speed are those signs. How many people pass a speed limit sign and go "challenge accepted!"? Clearly, we need to ban all speed limit signs!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jun 2018 @ 8:17am

    This is why people hate lawyers

    When I first read the article I was thinking how irresponsible of Snapchat to create a filter that encourages speeding. Ok, makes sense to name them in a suit. Then I searched Google to learn about the speed filter. Basically you enable the filter and it overlays how fast you are going when you take a picture. It does so by using your phones GPS. To blame the filter and Snapchat is as stupid as suing a car manufacturer for installing a speedometer that can show a speed greater than the speed limit after someone get in wreck at high speed. (I hate myself for saying this because some lawyer is going to take this idea and run with it).

    It is shit like this that give lawyers a bad name, and not so much the stupidity of the case, but most likely the fact that they know they will lose but can drag the case out for 100's of billable hours.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 19 Jun 2018 @ 10:41am

      How fast you're going according to GPS

      This reminds me of the Russian epidemic of thrill-seeker selfies, sticking their bodies outside vehicles or otherwise subjecting themselves to imminent danger while taking a selfie. Here in the US bear selfies were (still are) all the rage.

      But again, don't blame the camera, blame the people seeking thrills. My mother has been doing something similar since the seventies, dragging her four pounds of Canon camera gear to high summits to take pictures of herself and her summit team.

      And yes, one year, one of her crew slipped and was inadequately secured and splatted on the rocks below. She got to wait with a corpse while the rest of the team summoned an air-lift. The point of the thrill is that it's dangerous.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Cowherd, 19 Jun 2018 @ 1:18pm

    The really stupid part is, the idiot could've just as well been filming the car speedometer *without* any filter app to the exact same effect.

    What if there was no scary new technology involved? Does anyone think for a second suing the car manufacturer for the same thing wouldn't be laughed out of court?

    reply to this | link to this | view in chronology ]


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