(CN) — Hundreds of families have already filed individual suits over alleged harm to children from social media, but a new case in Seattle is doing something different. It is the first to be brought by government officials, specifically a public school district, using a “public nuisance” theory. In other industries, the same potent combination has led to billion-dollar settlements.
“There is a chance that this will become very large-scale,” said Alexandra Lahav, a professor at Cornell Law School who has written more than 30 articles on mass-tort litigation and is frequently cited in court decisions.
“There’s a lot of similarity to opioids,” said Theodore Rave, who has taught at Harvard Law School and the University of Texas at Austin. “It has the potential” to have a similar social impact, he said.
“Public officials can get a lot of bang for their buck for social change,” added Adam Zimmerman, a leading expert on mass-tort law who teaches at Loyola Law School. “If they recreate this model and lots of school districts get involved, it could play out like opioids.”
All three experts cautioned that it is still very early and it’s not clear what will happen. “A lot depends on the next six months,” said Lahav. But the potential for historic industry-changing litigation is there.
Seattle’s school district claims that Facebook, Instagram, Snapchat, YouTube, TikTok and Google deliberately addict children to their platforms and serve up inappropriate content that encourages anxiety, depression, eating disorders, cyberbullying and self-harm.
This has led to “drastic increases in suicides, attempted suicides, and mental-health related ER visits” by schoolchildren, as well as fights, classroom disruptions, absenteeism and tardiness, the district claims.
Waiting lists for school mental health services have become “astronomical,” according to the complaint, and the district has been forced to spend large amounts of money to keep up.
The lawsuit claims this is a “public nuisance,” the same legal theory that was used in government suits against the tobacco industry that led to settlements worth hundreds of billions of dollars as well as major changes to marketing and research practices.
A similar theory was used in government lawsuits against opioid makers that resulted in tens of billions of dollars in settlements, as well as claims brought by 34 states against vape-maker Juul. The Juul claims were settled last year for $438.5 million along with a $1.2 billion settlement in related cases.
Public-nuisance claims have a number of advantages over traditional product-liability suits brought by individuals, including the fact that governmental plaintiffs have far more money and resources. In a public-nuisance suit, there’s no need to prove how an individual person was specifically harmed or how much the harm was due to the product as opposed to other factors, for instance. And Rave said product-liability cases can be harder to win when the harm is emotional rather than physical.
In some ways the social-media lawsuits might even be easier for plaintiffs to win than the earlier mass torts. With opioids, many people became addicted to the drugs while taking them for pain, but much of the harm was caused by using street drugs later as substitutes, which made the cases more difficult, Rave noted. And opioid companies often leaned on something called the “learned intermediary doctrine" to defend themselves, saying that the drugs were prescribed by doctors.
Social-media claims don’t have these problems. “Any intermediary who was sufficiently learned would tell you that using social media was rotting your brain,” Rave quipped.
Another advantage is that the social-media companies are being accused of deliberately targeting children, which “automatically evokes some sympathy,” Rave said. “The most compelling arguments in the tobacco litigation were that some of the industry’s advertising was aimed at children.”